In recent years, the lines between so many people’s physical and online lives have blurred to a staggering degree. Hundreds of millions of individuals, including many of your employees, now spend a significant amount of time communicating, socializing, reading, learning, sharing, networking, and playing through various forms of online social media. The ease with which the technology allows immediate participation breeds self-disclosure over and over again. This very significant and growing portion of our population (the “exhibitionists” of this article’s title) are sharing—in potentially very public forums—pictures, videos and/or information about themselves that were traditionally kept much more private and with limited exposure. Today, however, these pictures, videos and information are often readily available for anyone (the “voyeurs”) to view at the click of a keystroke. Tag is no longer a child’s game but now a Facebook term for someone attaching your name to a photo on a person’s Facebook page without your knowledge or consent. The statistics are astounding:

  • 50 million tweets each day (or 600 tweets each second)1  
  • 72 percent of online 18-29 year olds, and 39 percent of Internet users age 30 and up, use social networking websites2  
  • Facebook has more than 400 million users (as of February 2010)3

As you likely know, the use and types of social media continue to evolve at a phenomenal pace.

Some of you may be thinking “I haven’t yet taken the plunge,” while others of you use it all the time and can’t imagine life without social networking. (For clarity, this article uses “social media” as the term to describe the types of Internet and Web based platforms that allow people to engage in “social networking”—the creation and exchange of user generated content. See the Social Media Roadmap box on page two for a primer on the platforms).

As a result of the social networking phenomenon, businesses of all types and sizes are struggling to answer a growing number of questions related to employee use of online social media:

  • “I can’t believe one of my employees posted that on her Facebook page! Can I fire her?”  
  • “I Googled that applicant. Can I/should I use the information I found as grounds for not hiring him?”  
  • “Should my supervisors be posting recommendations for ex-employees of my company on LinkedIn?”

In response to questions such as these, employers are encouraged—correctly—to adopt a policy addressing the use of social media by both employees and by the company. Your business must consider whether and how it will use social media for business purposes, as well as the potential non-business employee use of social media. Unfortunately, however, there is no one-size-fits-all (or even most) policy when it comes to the use of social media. To be of value, your policy must be as unique as your organization. Additionally, as technology progresses, new issues will inevitably arise, the law will continue to change (albeit slowly), and your policy will need to change as well.

Do not throw up your hands, however. If you ask yourself the proper questions and address certain key issues, you can have an effective policy that will both provide needed guidance to you and your employees and also protect your business against the growing threat of liability related to employees engaging in social networking.

The rest of this article focuses on the ways in which social media might impact your business from an employment perspective, not only with respect to current employees, but also as to candidates for employment and former employees as well.4

The Potential Employee

When it comes to potential candidates for employment, ask yourself whether and to what extent you, the employer, want to use social media to obtain information to make hiring decisions. Many individuals make available significantly more information about their personal lives online than what they would otherwise share in a resume, application, or job interview. So, do you look?

On the one hand, you might discover valuable information about the applicant that would be significant to your hiring decision (e.g., prior job terminations, illegal drug use, examples of poor judgment, etc.). Indeed, many employers find they simply cannot resist such a quick and inexpensive means of learning this potentially critical information about a candidate.

On the other hand, you risk becoming pregnant with information that would be unlawful for you to use in making a hiring decision (e.g., religious beliefs, medical history, prior workers’ compensation claims, etc.). Once you have this information, you may then face the often difficult task of establishing in subsequent litigation that you did not use the impermissible factors in making your decision not to hire the candidate.

Prudent employers, therefore, will consider these matters in advance and draft a policy to address the potential pitfalls. Some options to consider include the following:

  • Set the parameters of the social media searches in terms of sites and content.  
  • Train your searchers as to privacy issues and what information may be unlawful.  
  • Limit your searches to public information.  
  • Segregate the searchers from the employment decision-makers.
  • Document and maintain information provided to the decisions-makers.

SOCIAL MEDIA ROADMAP

  • LinkedIn – the social networking site for professionals  
  • Twitter – 140 character tweets—limited message that users compose to send to “followers” (those who choose to subscribe to a user’s updates) aka microblog  
  • Facebook or MySpace – personal social networking sites that provide members individual web pages for information about them and their friends, pictures, etc.; provides private and public settings  
  • YouTube – sharing site for music and entertainment videos, seminars, legal advice, how-to, etc.  
  • RSS/SML Feeds – collection of news headlines and links; news that individuals identify as important is found for them  
  • Blogging – keeping a journal or diary – aka “weblog”  
  • FourSquare – a cell phone based application that allows members to “check in” by telling friends who are members where they can be found and about the places they frequent

The Former Employee

Social media also is impacting the relationship between employers and their former employees. In particular, social media sites such as LinkedIn provide your current supervisors and employees with a unique opportunity to make recommendations regarding current employees who also may become former employees. Once posted, it may be difficult to have the reference removed. You need to consider, therefore, your existing policies and/or practices relating to providing employee references. If, like many businesses, your policy provides that only human resources provides job title and dates of employment for former employees, then you should prohibit employees from commenting online about the job performance or character of current or former employees.

The Current Employee

So far, the majority of the practical headaches and potential legal pitfalls for employers regarding employee social networking involve current employees (e.g., employees posting lewd pictures of themselves, disparaging their company online, harassing a co-worker, posting confidential information, etc.). While it will vary for each employer depending on your particular organization, culture, size, and computer practices, there are several significant issues that you should consider and address in your social media policy. They include the following:

1. Define “social networking.”

Your policy should include a broad definition of “social networking” (or whatever other term you choose to use). Once you define the term you have selected, then use that term consistently throughout your policy.

2. Address use of the company’s technology and time to engage in social networking.

For some, a complete ban on all social networking activity on the company’s technology (cell phones, Blackberrys, computer, etc.) and on the company’s time (even if using a personal device) might be appropriate. Indeed, your employees may already be subject to such a limitation under your existing Internet or e-mail policy, and there might be no legitimate business reason for anyone in your organization to use social media at work. Even then, however, consider carefully whether you need to carve out any limited exceptions for, as examples, your marketing manager, sales staff, or human resources staff.

If a complete ban does not suit your organization, then your policy should be clear about whether only work-related social networking is permitted or whether some personal social networking is allowed. Obviously, one of the concerns with allowing personal social networking activity at work is reduced employee productivity. Thus, if you decide to allow it, your policy should note any time limitations on such activity, instruct employees that such activity must not interfere with any employee’s job duties or the operation of the company’s computer system and that use is subject to monitoring by the company. You also will want to consider if there are certain social media sites for which you will want to block access.

3. Identify conduct that is strictly prohibited, whether on or off duty.

Unfortunately, even if you completely ban social networking during employees’ working time, you are still at risk. Indeed, some of the most troublesome issues facing employers in this area arise out of off-duty social networking activity by employees using their own technology. Your policy should clearly state, therefore, the prohibitions that apply to both on and off-duty social networking activities. You must also understand your company’s obligations to supervise employees and their activity under various state and federal laws and regulations (e.g., those covering publicly traded companies, entities subject to insurance and securities-related rules and regulations, healthcare providers and other HIPAA-covered entities, etc.) and ensure your policy covers these issues. Some examples include prohibiting:

  • Unauthorized disclosures of your business’s or customers’ confidential, proprietary or trade secret information;  
  • Posting of false or defamatory information about your business or your employees;  
  • Postings about your customers or clients or their products or services;  
  • Violation of your other policies (discrimination, harassment, etc.);  
  • Using your company’s e-mail addresses to register for social media sites;
  • Using your company logo or other protected marks;  
  • Speaking or posting on behalf of your company without express authorization.  

You also should educate employees about the public and often permanent nature of their posts and your ability and right to monitor the content they publish online. Your employees should be made to understand that their conduct—including online or via the company’s technology—has the potential to reflect both negatively and positively on your organization, regardless of whether they expressly identify that you are their employer. Importantly, unlike their physical conduct, which typically gets little attention but for a chance story in the local news, their online conduct can be posted for potentially millions to view with ease.  

4. Be cautious about prohibiting too much.

Employers must be cognizant of the various legal limitations on their ability to prohibit certain employee activity and be careful not to include overly broad prohibitions in their social media policies. For example, various state and federal non-discrimination laws prohibit employers from retaliating against employees who report or otherwise complain of unlawful discrimination or harassment. Other laws similarly protect employees who engage in other “whistleblower” activity. Additionally, the National Labor Relations Act and many states’ labor laws prohibit employers from interfering with employees’ discussion of wages, hours and working conditions or engaging in other protected concerted activity. Thus, a policy that includes a blanket prohibition against blogging about your company would be overly broad under these laws and could expose the company to liability.

If you are a public employer, you also must remember that your employees enjoy certain freedom of speech protections under the First Amendment, which may protect an employee’s postings on a matter of public concern.

5. Identify affirmative obligations for use of social media.

In addition to identifying prohibited conduct, your policy should include certain affirmative obligations applicable to your employees.

  • Require that employees use disclaimers regarding the expression of personal views where the employer is implicated in some way.  
  • To comply with the Guides from the Federal Trade Commission (FTC), you also must require that employees, who post any form of endorsement of your products or services, disclose their employment relationship with you.5 Alternatively, you may consider simply prohibiting your employees from discussing your products or services online at all.  
  • Those individuals with permission to “blog” on your behalf also should be provided with instructions about the protocols for that activity.  

Conclusion

One thing we know about your social media policy and practices is that they will need to be reviewed and evaluated regularly. Guidance from the courts and administrative agencies, by their very nature, lags behind the pace of the technology. You should plan to develop a policy and test drive it with a group of employees and management before releasing it to your entire company. And, as you navigate the development of best practices for your company, let us know if we can help.