Social media is everywhere, and many of our employees are connected to a variety of social media outlets during work and personal time. This leaves business managers with concerns regarding how they should manage their employees’ usage of social media at work, what potential issues could arise from their actions and how to mitigate their risks. Most human resources professionals agree that businesses should adopt policies regarding using social media at work to reflect the growing popularity of this form of communication, particularly among younger workers. It is here to stay. The federal National Labor Relations Board (NLRB) has been broadly interpreting the National Labor Relations Act (NLRA) regarding the protection of employee rights through social media (see The NLRB and Social Media), so companies need to carefully and thoughtfully determine how best to integrate social media into the fabric of the business.
Do What Is Right for Your Company
We always hope that our employees will act maturely and ethically in all work situations. Chances are that your employees will not post a company reputation-damaging YouTube video or complain online, but you may wish to establish some ground rules for social media use at work. Here are a few things to think about before drafting a social media policy:
- Consider whether you want to allow social media at work at all. Is that a necessary or realistic consideration at your company? This might require turning off Internet access and/or blocking certain sites, not to mention deciding how much time you want to spend monitoring what your employees are doing online.
- Review your other policies regarding employee usage of company electronic equipment (computers, telephones and smartphones), technology, Internet, privacy, harassment and confidentiality. All of your policies regarding using and protecting company resources and employee rights should be integrated and aligned. It might be a good time to update all of those policies!
- Consider both at-work and not-at-work usage. Your policy should consider not just how employees are spending their time at work online, but also how they might be describing their work life and your company when they are online outside of work hours.
- If you permit at-work networking, you will need to define what you consider appropriate online activity. Clarify for your employees that what they post online is public information, and, therefore, you expect that they will represent your business in a professional manner, including not making negative comments about competitors or posting opinions on controversial issues. This expectation should include whether they wrote the posting from work or on their personal electronic devices at home. Be clear about what the company considers to be trade secrets or confidential information and remind employees that this applies to “virtual” communication. Impress upon your employees that using social networks comes with using them responsibly, both in terms of content and also amount of time spent so that their actual work you pay them for gets done each day.
- Don’t forget that any posts made by your employees become new sources of discovery in any litigation action. See Fire over Facebook? A Primer on Protected Social Media Activity in the Workplace.
- Educate your employees about the appropriate use of social media sites and consider your data security. There have been numerous high-profile accounts of people accepting “friend requests” from imaginary profiles. In fact, in a December 2010 BitDefender study, 94 percent of people accepted friend requests from imaginary profiles and 73 percent of those engaging in real-time chats gave out confidential company information, such as future strategies, plans and unreleased technologies/software. Employee education is key.
- Ensure that you get appropriate legal advice about the applicable legal implications of your social media policy. Here are a few examples of potential legal issues you may encounter:
- In some jurisdictions, viewing an online profile of a candidate you do not hire might put the burden on you to prove that the decision you made was not based on the applicant’s protected characteristics.
- There may be a statute in your state protecting the privacy rights of employees’ off-work activities.
- While an employee may cite his/her First Amendment right to free speech, in most states, that protection generally applies to government restrictions on one’s freedom of speech. Private businesses do have the right to prohibit employees from publicly expressing opinions about the company. There are exceptions for “whistleblowing,” and some states have other protected workplace speech statutes. Use caution, as this is an area where the NLRB has ruled that groups of employees who use social media to express negative opinions about their company is protected under the NLRA “protected concerted activity” clause.
- How an employer accesses employees’ private social media sites may make the company liable under the federal Stored Communications Act if access is obtained without proper authorization from the employee.
- Ensure that your social media policy is not too broad so that it does not violate the NLRA rules that restrict employees from discussing wages, hours and working conditions with co-workers and others while not at work or discipline employees for engaging in such discussions.
Seek legal counsel for a thorough review of the various privacy, labor, safety and employee laws in your state as they relate to your social media policy prior to adopting it.
Tips and Traps with Social Media
How can employers manage their risks with employee usage of social media? In addition to the policy considerations addressed above, what follows are practical tips for managers:
- DO NOT “friend” or “follow” employees or managers online
- DO NOT recommend employees on LinkedIn or other business sites
- DO NOT post pictures of the workplace, co-workers or customers (without advance express written permission)
- DO make sure that your data security is well controlled (both physical and electronic security)
- DO follow up on employee work complaints posted on social networks to improve the situation, not to punish the employee
- DO talk with your employment attorney prior to any termination of employment action for social media comments or information disclosures
- DO check the social media sites where your company is discussed. DO NOT spy on your employees
- DO make sure that you have strong restrictive covenants regarding nondisclosure, non-solicitation of customers and employees and noncompetition (where allowed)
Managing the power of social media at work to boost our businesses and enhance our employees’ learning experiences and connectivity is important to business success. Following these tips and avoiding the traps will enhance the value of using these tools in your business.
