By Heidi Carpenter, Fafinski Mark & Johnson, P.A.
By the end of 2012, Facebook will be home to more than 1 billion users; Twitter will have registered 500 million-plus users; and YouTube will far surpass 4 billion views per day. These incredible numbers indicate social media will continue to shape the ways in which we communicate. The rise of social media also has transformed the landscape of the workplace.
It is likely that many of your employees are among the users of social networking and sharing sites during the workday. This can cause quite a headache for Human Resources, supervisors, and management professionals who are left to apply existing employer policies to the use of social media in the workplace. Creating a social media policy that protects the company but does not infringe on employee rights can seem complicated. To provide some clarity, the following are answers to some frequently asked questions from employers regarding social media use and policies:
Do we need a defined social media policy?
This one is easy: Yes. Without a clearly written social media policy, employees have no means by which to determine whether or not their social media conduct aligns with company policy. Therefore, it is crucial that all employers determine their position on social media behavior and clearly communicate expectations and limitations to all employees.
As a general rule, policies should include sufficient detail regarding the employer’s rules, expectations, and limitations. A broad policy with little detail will be difficult to interpret and administer and may be found to infringe on employee rights.
Once created, social media policies must be implemented and communicated to employees. If a monitoring system is put in place, internal processes regarding monitoring should be developed and communicated to key employees such as Human Resource personnel and managers.
Are there regulations to guide my social media policy?
To date, federal and state legislatures have not specifically created laws addressing employee rights in social media. However, the National Labor Relations Board (NLRB), as it interprets the National Labor Relations Act (NLRA), has been active in trying to define employee rights in social media by issuing multiple rulings on cases involving adverse employment action taken against employees as a result of their social media use. The NLRA addresses both union and non-union employee rights; therefore, its decisions regarding social media are also applicable to non-union employers. The NLRB rulings can be found on the NLRB Website at www.nlrb.gov.
The Federal Trade Commission (FTC) also has gotten involved in investigations concerning social media use as it involves endorsement of products on social media sites. If employees are involved in product endorsement, your social media policy should comply with FTC guidelines. FTC guidelines can be found at www.ftc.gov.
What employer information is protected under social media policies?
Employers may require employees to maintain the confidentiality of its trade secrets, confidential information, and intellectual property, as employees have no protected legal right to disclose this information. Additionally, an employee is not entitled to defame the employer or its other employees. A best practice when creating a social media policy is to outline examples of prohibited behavior such as disclosure of information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications.
What employee information is protected under social media policies?
Discrimination based on an employee’s age, race, marital status, religious affiliation, political views, disability, and other protected classes is always prohibited. Therefore, obtaining such information about employees through social media outlets can be problematic. Employers cannot use this information—even if listed on a social media site —in any employment decision including hiring, promotion, and termination.
Many social media users set privacy settings on their profiles, thereby controlling access to pictures, posts, and other information. Employers should refrain from attempts to work around these privacy settings in an effort to gain access to private information.
What rights do employees have when using social media?
Most state laws prohibit employers from taking adverse employment action against an employee based on an employee’s lawful behavior outside of work hours if such behavior takes place off of employer premises. Employers need to be careful when obtaining information about an employee’s activities outside of the workplace. Pictures, video, or status updates reflecting lawful activity of an employee are not legal grounds for disciplinary action even if they are perceived as displaying poor judgment or questionable character.
Additionally, under Section 7 of the NLRA, employees are granted the right to confer about wages, hours, and terms and conditions of their employment, including complaints about another worker’s job performance. The NLRA also entitles employees to the right to self-organize; to form, join, or assist organizations; to bargain collectively through representatives of their own choosing; and to engage in other activities for the purpose of collective bargaining or other mutual aid or protection. In light of social media’s extensive presence, these NLRA rights now extend to employee activity on a social media site.
Notwithstanding, employers do not have to tolerate unlawful harassment such as racial, sexual, or other forms of harassment that violate state and federal laws. Social media allows colleagues to interact off of work premises, and as such, standards of respectful behavior among co-workers should include communication through social media channels to avoid creating a hostile or offensive environment at work.
When constructing a social media policy, be careful about restricting social media use. Ensure your policy is not so broad as to encompass permitted activities, but instead, provides guidance on what behaviors are appropriate or inappropriate.
As the world of social media continues to grow in complexity, stay tuned to advances in social media, employees’ use of social media, and changes occurring in social media law. Doing so can help you keep your policy up to date and avoid potential costly lawsuits.
Heidi A. Carpenter, shareholder at law firm of Fafinski Mark & Johnson, P.A., is a commercial attorney who focuses her practice on providing counsel to investors, start-up companies, and closely held businesses of all sizes with business, corporate, transactional, and employment law matters. She has more than 14 years of experience providing general counsel assistance to companies and their owners.
