Social Media in the Workplace: What Employers Need to Know

05 August 2011 Labor & Employment Law Perspectives Blog
Author(s): Cristina Portela Solomon

Whether it is through Facebook, texting, online chatting, YouTube, Twitter, LinkedIn, or one of the many other channels available, people are flocking to social media in increasing numbers. As a result, social media’s reach has extended into the workplace, forcing employers to face a growing list of concerns stemming from employees’ use of these various outlets.

The Ethics & Workplace Survey compiled by Deloitte LLP in 2009 indicated that among the employees surveyed, 22 percent reported they regularly visited social networking sites five or more times per week, either at work or away from the office. An additional 23 percent said they visited such a site one to four times per week.

While the use of social media in the workplace is often a personal pursuit, it is frequently combined with professional purposes. This intermingling of the two worlds presents employers with new hazards, as well as opportunities as, ultimately, the degree of involvement in and control over an employee’s use of social networking vehicles is up to the employer.

Social networking sites can provide businesses with new avenues to market themselves, brand their products and services, and develop customer relationships. It also can help to foster internal networking among employees, improve applicant screening, and monitor employee conduct that may reflect positively or negatively on the company. Employers who find ways to use social media outlets as tools, instead of treating them merely as threats, are better able to position themselves to reap the benefits of both existing structures and new developments in social networking.

To that end, many businesses have taken affirmative steps to engage themselves in the social media universe; for example, CEO Tony Hsieh meshes his personal and professional lives to advance his company’s image and brand in his daily Twitter posts. He is not alone. According to one report, more than 1.5 million businesses have active Facebook pages that can be viewed by current and prospective clients.

Caveat Employer: Legal Risks Inherent in Social Media Use

The Internet, however, has long provided a ready and willing forum for disgruntled individuals to voice complaints and launch verbal attacks with immediacy. The ease with which a person can take action within a social networking environment – coupled with the sense of community found within a person’s network and the common misperception that the Internet is beyond the reach of traditional mores and existing rules – can often result in impulsive and ill-advised content that is posted with impunity and made available to the general public for immediate consumption.

This sort of behavior can yield a plethora of legal implications, including discrimination lawsuits, defamation claims, disclosure of the company’s confidential information and trade secrets, and damage to the company’s reputation. Moreover, courts are increasingly finding that content on social media sites is discoverable in litigation, which imposes additional burdens and costs on employers, especially those who do not already have mechanisms in place to address employee use of social media.

Employers attempting to regulate their employees’ social media content face numerous hurdles: monitoring can be time-consuming, regulation of off-hours conduct is fraught with concerns related to personal privacy, and the availability of social media applications on mobile devices renders “site blocking” futile. Additionally, employers must recognize situations in which the employees’ activity – while, perhaps distasteful – may constitute protected activity under the National Labor Relations Act, or whistleblower or retaliation statutes.

Managing Your Workforce: How A Social Media Policy Can Help

Employers and employees alike benefit from clear policies that delineate what conduct is acceptable, what conduct is prohibited and exactly what the latter means in terms of disciplinary consequences.

While some businesses may find it necessary to prohibit employees’ use of social media outlets altogether, companies that can derive benefits from appropriate use should consider adopting policies that accommodate their employees’ use of social networking accounts, while still discouraging inappropriate use that may harm the company. For example, an employer may find a clear prohibition on harassing, defamatory, or illicit content coupled with different access policies for on-the-job social media use versus off-the-job use creates a more flexible and positive environment for its employees.

For companies that operate in industries that necessitate social media use by employees, a more open policy – with restrictions imposed only on inappropriate content – would be favored in order to further the company’s goals. In concert with promulgating a policy, employers are well advised to train their employees in not only the terms of the policy, but also the rationales and company goals underlying the policy.

Regardless of how restrictive an employer wishes to be regarding employees’ use of social networking, a clear, understandable, written policy is fast becoming a business necessity. By crafting a company-specific policy and educating your workforce regarding its purposes and practical implications, your company can capitalize on the advantages offered by social media while avoiding its pitfalls.

Megan Batchelor, Associate in Gardere’s Labor and Employment group, assisted in the research and writing of this article.

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