Part Four: Issues Associated with Employee Use

OVERVIEW TO THE SERIES

Social media usage has revolutionized the way in which companies communicate with consumers. This Hartung Schroeder Practice Series is presented in five parts and provides practical guidance on the potential risks to a company attributable to the use of social media tools by the company and its employees. The Series explains:

ISSUES ASSOCIATED WITH EMPLOYEE USE

Employee misuse of social media can be devastating to a company, both legally and from a public relations perspective. Social media employee banter relating to protected traits such as race or gender may violate an employer’s anti-harassment policy and create a hostile work environment, just as it does when communicated in person by employees. Employees griping on social media about their work environment may impact the employer’s reputation but may also provide a window for the employer into employee morale and its potential negative impact on productivity. Social media may be used by employees, whether intentionally or not, to divulge trade secrets, or copyright-protected or other confidential company information.

Currently, the law with respect to employment and social media is practically devoid of any useful guidance for companies. Instead, employers must rely on basic principles related to employee privacy, anti-discrimination and harassment law, intellectual property law, and other applicable law, to discern how to best use (and control the use of) social media in the workplace.

The risks associated with employee use of social media include:

  • Loss in productivity. Employees’ use of social media sites during working hours can result in a decrease in productivity.
  • Inappropriate conduct among employees. Social media sites can be, and are often, used as communication tools between employees. However, at times, these employee communications may cross the line into harassing, threatening, discriminating, or other unlawful conduct that can subject the employer to liability.
  • Disclosure of confidential or proprietary information. Employees’ disclosure of confidential information could result in the employee’s breach of his or her confidentiality and nondisclosure agreement, violate the terms of a confidentiality agreement between the company and a third party, causing the company to be in breach, cause the company to lose protections of its proprietary intellectual property rights, waive the attorney-client privilege, and violate securities laws.
  • Unlawful disciplinary action for certain non-working time and off-duty conduct or otherwise protected social media use. Content posted anonymously is very difficult to police and several state laws prohibit employers from taking adverse action against an employee for engaging in lawful, non-working time and off-duty conduct, including political activity or affiliations specifically protected under state law. Employers must also be cautious about taking adverse action against an employee whose social media use could be protected under the NLRA or federal and state whistleblower laws, such as the Sarbanes-Oxley Act. Finally, government employers have the additional burden of avoiding any violations of their employees’ First Amendment and other Bill of Rights protections by disciplining them for content posted on a social media site.
  • Liability for employee content. It is unclear to what extent, if any, an employer may be liable for an employee’s statements in social media. However, the FTC Guides suggest that both employers and employees may be liable in certain circumstances, such as when an employee posts messages on a discussion board promoting a company’s product without properly disclosing the employee’s relationship to the company (see Example 8 of 16 C.F.R. § 255.5). Similarly, laws against harassment, discrimination, and other unlawful conduct that can subject an employer to liability apply just as forcefully to social media conduct.

In light of these risks, it is important to send a clear signal about employer expectations for employee use of social media, by adopting a social media policy or provision in a company employee handbook. If your company has not developed policies for use of social media by your employees, do it now.

 

Continue to Part Five: How to Create and Implement a Social Media Policy.