July 31, 2009

Social Media & Employer Liabilities

Filed under: Technology — Tags: , , , , , , — kgilnack @ 4:36 pm

A couple of weeks ago I had the pleasure of attending a very interesting roundtable hosted by Hirsch Roberts Weinstein LLP on the legal and HR implications of employee use of social media.  So much of my thinking about social media centers around how individuals and organizations can use technology to advance mission-driven or professional goals, but it was interesting to hear the perspective of how employers view and can/should address employees’ personal use of social media.

Here are some notes on the interesting facts that I left the session with (Disclaimer: Nothing in this post is intended as legal advice or to replace consulting with an attorney)…

So can employers fire employees over their internet postings?

  • Employers are unlikely to face liability for firing an at will employee over something inappropriate on a public profile
  • Employers may face liability for firing employees over postings in a private forum, especially if they request access to that forum in the workplace.  This notably came up on the Houston’s Restaurants case, where the employer demanded access to a password protected forum and the courts found  that:
    • Company did violate state and federal wiretapping laws by demanding access to a private online space
    • Employees’ first amendment claim was thrown out pretrial
    • Jury found that password-protected pages are a private space, but in this case said there was no expectation of privacy

Can they fire you for not using social media?  Employers can require use of social media sites for company purposes if for legit business purposes like scheduling, sharing info, or project management. [Didn’t get into requiring use of personal accounts for those reasons.. assume that can’t be forced but a second profile or purely professional profile can be required. Could have used more discussion.]

Potential Benefits of using social media

  • For employees
    • Quick answers to questions
    • Personal PR and branding – a virtual public résumé
    • [not mentioned] Building and maintaining a relationships for personal and professional uses
  • For employers
    • Effective means of communication = effective company
    • Expand visibility
    • Recruitment
    • Background check for potential new employees (though one Texas bank has barred HR from using SM sites for fear of discovering, for example, a potential employee is pregnant, which they couldn’t ask in an interview.  HRW didn’t advise taking that approach, just don’t not hire people for the wrong reasons…)
    • Soliciting feedback from customers and employees
    • Modify marketing and development plans
    • Allowing collaboration and knowledge sharing
    • [not mentioned] Unsolicited feedback from customers and employees – listening via Twitter and Blog searches
    • Influence product (and brand) perception
    • Creating focus groups, direct customer contact

Potential Problems of using social media

  • For employees
    • Your words live on forever and can come back to haunt you
    • Exercise great discretion with respect to content
    • Posts can lead to job loss and other problems
  • For employers
    • Drain on productivity (though they only used simple math of multiplying 30 minutes of Soc Media x 100 Employees x 1 year to show that adds up to a lot of time not working.  They ignored a recent study that concluded allowing workplace social media uses can increase productivity by 9%)
    • Risk of malware, spam, and viruses
    • Exposure of confidential info and related liability
    • Social networking sites are premised on a user surrendering a certain level of privacy
    • Reputational risk
    • 74% of employed Americans believe it is easy to damage a brand’s reputation via social networking (whatever “thinking it’s easy” actually means…)
    • Bandwidth concerns

What’s an Employer To Do in the Workplace? Simple, pick one of three options..

  1. Ban all access to social networking sites and the internet – Draconian and not recommended
  2. Allow unmonitored access – has benefits but also increases risk
  3. Limited access – their recommendation – allow but consider safeguards

Can/should Employers Watch?

  • Monitoring online activity at workemployees should know that any keystroke, email, text, etc. sent on the company’s system may be legally monitored. Have employees sign policies related to internet usage at work and what they are permitted to say and do during work hours, as well as that failure to comply can result in dismissal
  • Perceptions of Monitoring out of work
    • Among employers
      • 60% of execs feel they have a “right to know” hoe employees portray themselves and their org online
      • 30% admit to formally monitoring social networking sites
    • Among employees
      • 53% believe that content of social networking pages are “none of any employers’ business”
      • 33% never consider what the boss would think of their postings; 27% don’t even consider consequences of their postings
      • 61% wont’ change what they’re doing if the company’s watching (includes those that are already acting responsibly)

Tips for updating/creating policies around internet use and social networking

  • No interference with work activities – consider monitoring software
  • Let employees know their social networking activities outside of work may be monitored
  • Publication of information on social networking sites must comply with all company policies regarding ethics, privacy, and the protection of confidential and proprietary information
  • Don’t share company or client secrets
  • No references to company clients, customers, or partners without permission
  • On personal blogs, make clear that the views are the author’s, not the company’s
  • No use of company logos and trademarks
  • Be respectful of company, co-workers, competitors, colleagues – online activities reflect upon the company
  • Respect copyright laws – cite sources
  • Be transparent – don’t hide behind phony identities

Some Questions for YOU…

  • Does your employer have an employee social media policy / social media & technology aspect of your HR policies?
  • How do you feel about being monitored in the workplace – or out of the workplace?
  • Have you used social network to research new hires?  How about partners, donors, or anyone else?

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