by Kathryn M. Nash, Esq.
Participation in new “social media” outlets is on the rise, creating many questions for employers. Should we be using social media to develop business or to recruit new talent? Should we allow employees to use social media at work? What types of restrictions do we need? Can we monitor off-duty conduct? And what are the potential liabilities?
Defining social media
Social media generally refers to online tools or web sites that allow interaction between the web site operator and web site users, or among users, and permit user-generated content to be posted. Examples of social media include blogs, wikis, sites for sharing video (YouTube), social networking sites (Facebook, MySpace and LinkedIn), micro-blogging sites (Twitter) and online virtual worlds (Second Life).
While social media provides many useful opportunities to communicate directly with members of the public, there are a number of legal issues to consider when hosting or participating, or when permitting your employees to participate at the workplace.
In addition, there are risks that employees should consider in determining whether, or to what extent, to participate in social media.
Risks for employers, employees
Employers should be concerned about employee statements on social media that could disparage the company or otherwise reflect negatively upon it.
Employers should also worry about employee statements that others may perceive to be made on behalf of the company.
In some instances, depending on the unique facts and circumstances, an employer could be held liable for statements made by an employee on a social media site. For example, employers may be liable for defamation or intellectual property infringement that occurs as a result of comments or posts made by an employee if the employee is found to be acting on behalf of the company.
Employees have their own problems to worry about when they participate in social media. For example, they can be held personally liable for defamation or harassment that occurs on social media. In addition, they may be disciplined by their employers for social media conduct that violates the law or company policy.
Reducing potential risks
There is an inherent tension between the real-time, unfettered discourse of social media and an employer’s desire to carefully control corporate communications. While there is no way to completely eliminate the legal risk, developing and enforcing a social media policy, and educating all employees about proper use of social media, are effective ways to avoid legal pitfalls.
Develop a written policy
A social media policy should put employees on notice of the company’s expectations and the consequences for failing to comply. In addition, the policy should clearly state that employees do not have a reasonable expectation of privacy if they are using social media for personal purposes on a company computer. (See box below for specifics on what to include in your policy.)
Train workers, enforce policy
Provide training for employees on all aspects of the company’s policy and expectations, including the risks inherent in social media use. It’s a good idea to have employees acknowledge receipt of the policy and their participation in training.
Finally, as with all employment-related policies, a social media policy is only as good as the company’s timely and consistent enforcement of it.
Author: Kathryn M. Nash is a principal at Gray Plant Mooty and practices in the areas of employment law and higher education. You may contact her at (612) 632-3273 or firstname.lastname@example.org.
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