With technology growing by the nanosecond, the law can’t possibly keep up. In this modern age of Internet and social media, courts around the nation are finding it increasingly challenging to balance the rapid-fire availability of Internet and social media public disclosures and comments against our nation’s traditional rights of privacy and free speech.
While we await guidance from our legislative and judicial representatives, as with any employee-related issue, careful documentation is the employer’s friend. The best way to protect against potential business risks and employee claims with regard to computer use, technology and social media is to draft a comprehensive social media and systems use policy. Here are the top ten issues to cover in your social media policy:
1. Acceptable Use of Systems. The employer should address acceptable and unacceptable use of the company’s communications systems by employees. Can employees use the company’s computers and telephones for personal use? If so, company management may be granting the employees at least a partial right of privacy in their communications sent or received on that equipment. Consider providing the equipment to the employee and prohibiting personal use (even on breaks), to make sure that all content on the communications equipment belongs to and can be accessed by the employer.
2. Protection of the Company’s Proprietary and Confidential Information. Remind employees that they are forbidden from transferring, transmitting, using or disclosing the company’s proprietary and confidential information (including customer information). Employees may transfer company data with the best of intentions (for instance, to work from home on an important project), but an employee’s faulty security systems or sloppy technology operations may leave your company’s proprietary information open to hackers or at risk of inadvertent loss. By instructing employees that all company information must remain on the network or in the office at all times, employers have the best chance of protecting that data.
3. Prohibition Against Discriminatory or Harassing Statements. Although employees have the right to post any statement they wish to post on their social media pages or on other Internet sites, they may not violate your company policies. When an employee posts harassing commentary on a social media or other Internet outlet, the employer may not be able to remove that post, but can certainly terminate an employee whose conduct (whether in or out of the office) violates company anti-harassment policies. The key is to make sure you are disciplining or terminating on the basis of the policy violation, not on the basis of the employee’s private Internet posting.
4. Prohibition Against Defamatory Statements. Similarly, employees’ social media or Internet postings may not rise to the level of defamation. There is a significant difference in the law between a post that says “my boss is a jerk” and a post that says “my boss is lying to our customers.” The first comment is a protected statement of opinion, and supervisors can do little more than chalk it up to the joy of being in management. The second comment purports to be a factual statement which defames the supervisor and the company, and may cause actual damage to reputation or customer relations. Employees are liable for defamatory statements, even if made in a private setting.
5. Required Disclaimers When Mentioning the Company. Employees are entitled to their own opinions, and have every right to express those opinions. When doing so, however, employees must note that their opinions are their own, and do not express the beliefs or ideas of the employer. When an employee posts on a social media site that he works for Company ABC and then expresses a viewpoint that may reflect poorly upon the company, he must include a disclaimer that the viewpoint is his own and is not reflective of his employer’s position.
6. Prohibition Against Unlawful Activity. Employers have a general right to instruct employees that the computer and other communication systems may not be used to promote unlawful activity. When an employee engages in insider trading, theft of proprietary information, defamation, harassment or other legally-prohibited conduct, it is important that his conduct is not traceable to the company’s computer systems. Employers should remind employees that they must follow all applicable laws when acting on behalf of the company or using the company’s technology or communications equipment.
7. No Intention of Interfering With Employee NLRA or Free Speech Rights. Employees have a protected right to free speech dating back to the creation of the United States Constitution. Similarly, employees have a right to engage in protected, concerted activity under the National Labor Relations Act to protect their rights in the workplace. Communications and social media policies should include reference to the fact that the employer recognizes these important rights and does not intend to interfere with them in the course of implementing and enforcing the policy.
8. Reporting Procedure for Violations. To avoid employee claims and ensure the well-being of all personnel in the workplace, employers should clearly define the methods by which employees may complain of harassment, discrimination, or violations of the communications and social media policies. Internet activity may be somewhat anonymous, but it is also easily accessed and intensely viral. Providing a clear process by which employees may raise complaints of inappropriate conduct with regard to technology and communications systems will ensure that the company is quickly informed of violations and is made aware of Internet and social media conflicts arising through employee or third-party conduct.
9. Right to Monitor Employee Use. Current laws are clear that employers have every right to access and monitor employee activity on company computers, telephones, cell phones and other electronic media, but only when the company owns the equipment being used and the employee has been informed of the company’s ability and intent to do so. Employers should always inform employees that their communications equipment and systems can and will be monitored, even if the employer has no intention of actually doing so. Failure to provide notice to employees of the ability and right to explore their e-mail, Internet activity, voicemail, and similar electronic communications is akin to searching someone’s home or car without a warrant – you may find outstanding evidence against the suspect, but you can’t use it to convict them.
10. Right to Discipline for Violations. It’s common sense that an employer has the right to discipline employees for policy violations in the workplace. And yet, employees who haven’t specifically been warned that certain conduct may lead to discipline or termination may argue that they were not aware of the relevant prohibitions. It’s always best to note that violations of the systems use or social media policies are serious enough that employees will be disciplined and/or terminated as necessary, to protect the company and the rest of its workforce.
By clearly outlining employer expectations with regard to the company’s communications equipment as well as employee use of the Internet and social media (both inside and outside the workplace), employers can achieve some level of protection of their business, information, property, reputation, customer base and employee pool. As with all aspects of employee management, documentation is key, and clear information is critical.
Article by Karen L. Gabler, Esq., Partner at LightGabler LLP