It’s no secret that employees are facebooking, tweeting, and blogging more than ever before. And chances are, they’re doing it on company time and talking about their work. A recent national survey showed that over sixty percent of fulltime workers maintain a profile on a social networking site. Of that group, half of the employees confess to accessing their account while at work, and a quarter divulge employment information in their profiles. Employers are using these resources, too. Another recent survey revealed that nearly half of all employers use social networking sites to screen job candidates.
What employers may not realize is that this flurry of social networking in the workplace creates significant legal risks for their organizations. For example:
- If an employer accesses an employee’s personal blog and learns that the employee has been diagnosed with cancer, the employer may have violated the Genetic Information Nondiscrimination Act (GINA), which just became effective late last year, by acquiring “genetic information” regarding an employee.
- If an employee recommends a company product or service on a personal blog, but fails to disclose the employment relationship, the company may face liability under new Federal Trade Commission guidelines regarding deceptive endorsements.
Other laws implicated by social networking include (but are not limited to):
- Fair Credit Reporting Act Amendments
- Stored Communications Act
- Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act, and other federal, state, and local laws
- State trade secrets laws and state electronic surveillance laws
- Invasion of privacy and other state tort laws
Three recent cases highlight the legal risks faced by employers:
- In New Jersey, a jury awarded two former restaurant employees compensatory and punitive damages after restaurant managers accessed the employees’ private MySpace group without authorization
- In Georgia, a teacher sued her former school district after she was allegedly forced to resign when a parent complained about material posted on the teacher’s Facebook account.
- In Pennsylvania, a labor union filed a charge against a media outlet, alleging that the company improperly limited employee use of Twitter.
The Right Response
What is your organization doing to minimize these legal risks? An outright workplace prohibition on social networking is often unworkable – for one thing, employees will find another way to access their accounts (e.g. via smartphone). Such a ban may also be unwise, as it restricts the employer’s ability to harness the many benefits of social networking (e.g. marketing).
A better solution may be a social networking policy that sets forth reasonable guidelines for employees. A good social networking policy should, among other things:
- Provide parameters for acceptable use of social networking in the workplace (e.g. business use only, limited personal use, etc.).
- Prohibit disclosure of the company’s confidential information and trade secrets.
- Protect the company’s brand.
- Require that employees use disclaimers when discussing company-related issues to make clear that their comments reflect personal opinions, rather than the views of the company.
A social networking policy should be carefully tailored for each organization and should be consistent with existing policies (e.g. Code of Conduct, Confidentiality Agreements, etc.).