Faced with a boom in the use of social media through increasingly smaller and more powerful personal devices (such as smart phones and iPads) and the personal use by employees of company-owned communication systems to access both the Internet and social networking sites, employers should update their policies to control such uses and ensure that their employees are spending their working time productively.
Two recent arbitrator's rulings support employer actions in enforcing social media policies. In one case, the arbitrator ruled that the employer had "just cause" to terminate an electrician who tapped into the company's Internet service to download first run-movies onto his own laptop while at work. The arbitrator found that the employee's use of the company's Internet system had violated company rules prohibiting theft or misappropriation of company property, the misuse of company property because the downloading of the movies was illegal, and the unauthorized entry into company property. Hayes International, 129 LA 559 (2011). In a second case, an arbitrator ruled that a federal agency had just cause to discipline an employee for playing computer games during working time, in violation of the agency's policy. Federal Bureau of Prisons, 127 LA 686 (2011).
Although both of these cases involved labor arbitrations under union contracts, all employers should consider drafting and implementing policies specifically addressing the limits on employee use of the employer's electronic communication systems. While specific provisions will vary from company to company, a social media policy should normally include the following:
- A written policy
- A signed acknowledgement form, including consent to monitoring and access to stored communications
- Definitions, e.g., "social media," confidential and/or proprietary information, working time, Company-issued equipment/devices
- Fair, consistent monitoring and enforcement
- The scope of monitoring, e.g., viewing Facebook profiles of existing employees, monitoring use of social media on Company-issued equipment/devices
- Possible disciplinary actions
- Periodic redistribution
- A clear process for reporting complaints/non-compliance
- A clear communication of prohibited activities