Social media is invading all facets of daily life. Right now, two-thirds of the global Internet population visits social networking sites, spending eight billion minutes per day on those sites. However, not everyone is waiting until after the end of the workday to visit Facebook or Twitter, or to watch or post videos to YouTube. Of growing concern to employers is employees’ use of social media during work and engaging in risky behavior that, left unchecked, can and will result in real liability and lost opportunities for companies.
“However, businesses can use social media to their advantage,” says Louis C. Klein, Esquire, Of Counsel to Jackson, DeMarco Tidus Peckenpaugh. “Smart social media use can result in increased product recognition and brand awareness, quicker and more efficient customer contact and service, and the ability to respond to crises and manage reputation — think Domino Pizza’s social media response to the viral YouTube videos of employees behaving badly.”
Smart Business spoke to Klein to learn more about how businesses can avoid the liabilities that can sometimes accompany employee social media use.
How does a company protect itself against improper and liability-creating employee use of social media?
The most sensible course of action for a business to take is to develop a reasonable social media use policy. In developing a sound social media policy, a company should first define the goals of the policy, strive to keep it simple, involve its staff and then commit to enforce the policy.
Completely banning employees’ use of social media, a fairly typical reaction, is unworkable. As Baby Boomers and Generation X employees leave the work force over the next ten years, Generation Y will ascend the employment ladder, becoming 40 to 50 percent of the work force. This is an Internet-connected, social media-savvy generation that will continue to revolutionize the way we communicate. It has been estimated that 75 percent of Generation Y has already created a profile on at least one social networking site. As the generational and cultural shift occurs in the workplace, younger employees might reject working for companies that won’t allow them to stay connected.
What should a social media policy cover?
A social media use policy should clearly define the company’s expectations related to an employee’s use of social media. It should state that employees must continue to adhere to a company’s code of conduct, as well as other company policies, including sexual harassment, discrimination, and confidentiality of private information or trade secret policies. Only company-designated spokepersons should identify themselves as being authorized to speak on behalf of a company on blogs or in profiles maintained on social media sites such as Facebook or LinkedIn. Employees should not be allowed to use a company’s images or logos without prior written permission.
How else can a business avoid liability?
An issue that is becoming more problematic is the downloading of copyrighted material from the Internet. In order to avoid running afoul of federal copyright laws, a social media use policy should include language that requires employees to obtain permission prior to including or downloading copyrighted material on a company-sponsored Web posting or to a company-owned computer.
Under the Digital Millennium Copyright Act, to avoid liability for using copyrighted material, a business must establish effective notice and take down policies, have no actual knowledge of the infringement, and must not have received any financial benefit from the infringement. Moreover, a company must properly comply with any take down notices it may receive from a copyright holder.
Finally, a company should define its disciplinary policy regarding the misuse of social media sites while at work and should make clear that the employer is monitoring company-owned electronic equipment so that an employee has no reasonable expectation of privacy in his or her use of the company’s equipment. A court of law is less likely to find that an employer violated an employee’s privacy rights if the employee has been put on notice that the employer has the right to monitor and review the content on any of its company-owned electronic equipment, including computers, e-mail systems, cell phones, smart phones, Blackberries, iPads and the like.
What should not be included in a social media policy?
The policy should not prohibit employees from identifying themselves as employees, should not prohibit employees from making comments regarding their employment, including the use of disparaging remarks, and should not prohibit employees from discussing the terms and conditions of employment.
The National Labor Relations Board (NLRB) has filed several complaints against companies for firing employees based on their Facebook postings. These postings, according to the NLRB, were protected activity and the companies’ policies prohibiting the conduct violated the National Labor Relations Act. Little known to most employers, both union and non-union workplaces are subject to the Act and the NLRB has the right to file a complaint against a company that has no union workers. Additionally, California Labor Code section 96(k) prohibits employment actions against employees for lawful conduct occurring during nonworking hours away from the employer’s premises.
Social media use will be an ever-changing labor and societal issue for the foreseeable future. A company that can harness the power of this medium while protecting its employees and assets will be far better able to compete in this brave new world than a company that hesitates, or, worse, buries its head in the sand.
Louis C. Klein, Esquire, is Of Counsel to Jackson DeMarco Tidus Peckenpaugh. He partners with businesses to resolve difficult employee issues, including the development of social media policies. He can be reached at (805) 418-1907 or firstname.lastname@example.org.