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Navigating the Social Networking Minefield

Navigating the Social Networking Minefield


SML Perspectives
(December 14, 2010)

Although the term “social network” was coined more than five decades ago, it has only recently gained widespread usage with the advent of social networking websites such as Facebook and LinkedIn which allow people to connect and interact with others who share personal and professional interests. The popularity and usage of social networking websites has increased significantly over the last several years, and that trend is expected to continue. A recent study estimates that nearly 25 percent of all internet usage in the United States is devoted to online social networks, which is a 43 percent increase from the previous year’s estimate.

As social networking websites continue to grow in both popularity and usage, employers should be aware of the potential legal issues created by their employees’ participation on such sites. The use of online social networks by employees raises more than just productivity concerns. Improper or careless use of these sites could harm the company’s reputation, reveal confidential or trade secret information, or form the basis of a claim for harassment or discrimination.

To reduce the risks associated with online social networking, employers should adopt a social networking policy that addresses employee usage of such websites. Although policies will vary depending on a company’s business and philosophy, the following are some areas that should be addressed in such a policy.

Definition of "social networking"

A social networking policy should clearly define what types of sites are covered and exactly what types of activities are prohibited, while being general enough to adapt to emerging media forms and social networking trends.

Productivity

If employees are engaging in excessive “social notworking” during work hours, it can no doubt have an immediate and tangible impact on the company’s operations. As such, the policy should make clear that company computers are generally intended for work, not personal use. An employer may decide, however, that a complete ban may not be feasible to enforce (without a company firewall), necessary to ensure productivity, or in the employer’s overall best interest, in light of the potential effect on employee morale. At a minimum, the policy should contain a simple statement that employees must limit their online social networking activities so as to not interfere with their job duties and performance.

No right to privacy and monitoring

The policy should state that employees have no right to privacy with regard to information written, sent, received, or viewed on the company’s computer system. The policy should also make clear that employees’ computer activity may be monitored or viewed by the company without their consent. The mere threat of monitoring may discourage over or improper usage of social networking websites.

Identity of user and disclaimers

Through the policy, remind employees that they are personally responsible for their social networking activity, even when it is conducted through the company’s computer system. When participating in online social networks, employees should always make clear that comments made and opinions expressed are their own and not that of the company. Regardless of such disclaimers, when employees identify themselves as representatives of a certain company, there is a potential for posts that will negatively reflect on the company, so remind employees to use good judgment. Further, the policy should prohibit use of the company’s logos, trademarks, or other intellectual property without prior written consent.

Confidentiality

The policy should remind employees that they must comply with all company policies concerning confidential information and trade secrets and that even private messages between individuals may not be secure from third parties. In the event of disclosure, employers should be prepared to take appropriate action to ensure they are not later found to have waived protection afforded to such information by failing to reasonably protect it.

Harassment / Discrimination

The social networking policy should reinforce the employer’s policies concerning harassment and discrimination and make clear that those policies extend to cyberspace. Employees must understand that they are prohibited from using online social networks to harass, disparage, libel, or discriminate against others in the workplace. Employers should also consider addressing online social network interaction between managers and their subordinates.

Recommendations

The policy should prohibit employees from providing recommendations relating to other employees or former employees unless specifically authorized to do so. Unauthorized recommendations could be attributable to the company and inconsistent with the company’s legal position should litigation later arise concerning the recommended employee or former employee.

Social networking outside of work

Although employees enjoy more freedom when they use their own time and equipment, the policy should address the employer’s expectations regarding off-the-clock social networking. It should be reiterated that disclosure of confidential information or trade secrets, harassing or discriminating behavior, and unauthorized use of the employer’s intellectual property is strictly prohibited, regardless of when or where such conduct occurs.

Discipline

Make sure the policy has some teeth and is consistently enforced. The policy should make clear that employees will be subject to discipline, up to and including termination, for violation of this policy. Employers should, as with all policies, uniformly apply and enforce the social networking policy.

Employer Usage

Finally, employers, like employees, should be careful about usage of social networking websites, particularly if they utilize such sites in making hiring or other employment decisions. In this information age, it is tempting to try to learn more information about existing employees or applicants by accessing their social network profiles. In doing so, however, employers may learn information that they are not legally allowed to consider in making an employment decision — thereby creating unnecessary legal exposure.

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Authors
Patti West Ramseur
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