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Your Space or MySpace?
In these days of company-issued BlackBerries or personal iPhones, employees no longer can be banned from accessing personal e-mail or Facebook at the office. Recognizing this, progressive companies are revising their Internet-use policies to govern use of social-networking sites during the work day. Simply put, the substantial benefits of responsible social networking outweigh the risks. As the use of blogging and social-networking Web sites continues to exponentially increase, so too grows the divide between management and employees. Facebook is now reportedly the most popular social-networking site in the United States, when considering either monthly unique visitors or total monthly minutes. And it's not just Generation Y who is online. Even upper-level executives are participating, according to Deloitte's 2009 Workplace Survey, which found that between one-quarter to one-third of executives report they are utilizing social networking for a variety of reasons -- including as part of their company's business and operations strategy, to help manage and build their company's brand name, and for recruiting. At the same time, nearly three-quarters (74 percent) of employees believe that social-networking sites create some risk for their employer. Even so, one-third of employees report that they post content on social-networking sites without considering the business ramifications. As the popularity of such sites soars, the majority of companies are unprepared. According to another recent survey by Deloitte, only 22 percent of companies have formal policies that dictate how employees can use social-networking tools. And it's impossible to ban access. In these days of company-issued BlackBerries or personal iPhones, an employee no longer can be banned from accessing personal e-mail or Facebook at the office. He or she no longer needs the company computer to do so. At the same time, it is impossible to eliminate the risk of liability involved in social networking. Recognizing this, progressive companies are revising their technology and/or Internet-use policies to govern use of social-networking sites during the work day in an effort to raise awareness, and provide additional protection. Simply put, the substantial benefits of responsible social networking outweigh the risks.
Best Social-Media Practices for HR Leaders HR leaders engaging in social networking should do so responsibly, whether on behalf of the company or for personal use, with the following guidelines/restrictions in mind:
DO: * Identify yourself. * Where appropriate, disclose your associations with the company and include a disclaimer indicating that the views expressed are your own opinions, and not those of your company's. * Limit work use to postings that create corporate opportunities, and comply with corporate policies and business strategies. * Take care to comply with the law, particularly with respect to copyrights and fair use; obtain advanced written reprint permission from copyright owners where applicable. * Exercise good judgment and strive for accuracy in communication; your company could be judged based upon your comments and/or attitude. * Consider your potential audience, which could include current and potential clients, as well as former, current and future employees. * Respect and protect the privacy of your company, as well as its clients, employees and proprietary information. * Review and abide by any non-disclosure or confidentiality agreement you may have with your current and/or former company. * Comply with all company policies and procedures, including those prohibiting discrimination, harassment and retaliation.
DO NOT: * Post anonymously. * Link from a personal forum to any company Web site, whether internal or external. * Make any controversial postings from a company account. * Use your company's brands, logo and/or trade/service marks without consent. * "Friend" anyone who is your subordinate. * Provide any references or recommendations for any current or former company employees without express consent of your company. * Disclose any information that could be considered "trade secrets," "confidential" or otherwise "proprietary," or discuss any company clients, products, employees or any work-related matters -- whether confidential or not. * Post any negative comments about your company's products, services, management or employees. * Post any photographs of other company employees, clients, vendors or suppliers, or of any company event or company product. * Post any comments that could be interpreted as threats, slurs, defamatory, discriminatory, demeaning, inflammatory, obscene, etc. * Make comments related to any company-related legal matter, litigation, or party your company may be in litigation with * Utilize social media for any illegal, unethical, malicious or destructive purpose
Benefits of Social Networking The primary benefit to be gained from social networking is, of course, information. Our firm recently assisted a client who discovered that one of its employees posted threats of violence against co-workers on a social-networking site. The company learned of this information from another employee after some general workplace complaints evolved into specific threats against specific individuals. Because of comments on the site, the company was able to protect its workforce, including those employees specifically threatened, by enlisting the assistance of the local police department to safely escort the employee who made the threats out of the building and off the company's premises. Information from such sites can also be used for better-informed employee recruiting and interviewing. Some companies are even formally implementing a review of social-networking use as part of applicant background checks, although companies choosing to do so should consult with counsel to ensure sufficient safeguards are implemented to reduce the risk of liability. Other companies are utilizing social-networking sites in connection with marketing and increased customer communication. Some businesses even create company accounts on social-networking sites and pay staff members to actively post and regulate that content. Allowing social networking in the workplace may also increase employee morale and assist with achieving work-life balance, according to Deloitte. While existing policies may provide some shield from liability, a growing number of companies are taking a more progressive approach and implementing policies specifically addressing social networking in an effort to maximize their business strategy -- and considerably reduce the risk of liability associated with this latest phenomenon.
Creating a Workable Policy Regardless of the extent to which your company allows social networking in the workplace, a well-drafted policy concerning computer access that includes social networking will almost certainly reduce liability. Deloitte estimates that only 17 percent of organizations have programs in place to monitor the use of social networks and mitigate the potential reputational risks associated that such use. Policy review and revision is critical, as at least one court has found liability where the applicable policies did not expressly reference social networking. In Yoder vs. University of Louisville, a student was expelled from the nursing program for violating the university's honor code and disclosing information in violation of a confidentiality agreement after she blogged on her MySpace page about a pregnant patient she had been assigned to shadow, and the ensuing birthing process. Although the U.S. District Court for the Western District of Kentucky found the blog to be "vulgar," "distasteful," "objectively offensive" and "crude," the court ordered the student be reinstated into the program, because neither the honor code nor the confidentiality agreement expressly addressed the situation. Specifically, the Yoder court found that the blog was "nonprofessional" rather than "unprofessional," and therefore fell outside the purview of the honor code because "it was not created or used in any professional context." While Yoder arose in the context of a student bringing suit against a university, its holding is equally probable as a claim brought by an employee contesting the reasons for his or her termination. Companies are well-advised to create a specific policy governing acceptable terms of social networking, ensuring that the policy expressly adopts all other applicable policies to the social networking context. IBM, for example, is reported to have one of the most progressive policies in this regard, as it works to transform its business model from one of "mass communication" to one of "mass communicators." Recognizing that its employees will be accessing the Internet, even from work, IBM has elected to raise employee awareness of the potential risks associated with social-networking use and set guidelines governing appropriate employee postings to such sites, including a warning that employees not "forget their day job." IBM's guidelines expressly provide that "the same principles and guidelines that apply to IBMers' activities in general, as found in the IBM Business Conduct Guidelines, apply to IBMers' activities online. This includes forms of online publishing and discussion, including blogs, wikis, file-sharing, user-generated video and audio, virtual worlds and social networks." While such an approach is not appropriate at every workplace, it certainly warrants consideration. There are many other considerations, as well. Employers should educate and caution employees on the potential damage resulting from their online usage, whether on-duty or off-duty -- particularly with respect to publication of potentially disparaging, embarrassing or harassing statements or photographs as they relate to co-workers or the company, or otherwise may impact the work environment. Implementing social networking into your company and business strategy, and/or allowing social networking in the workplace raises a number of additional risks, including an increased risk of viruses. Another area of concern arises from the reality that employers may learn previously undisclosed aspects of their employees' lives, including hobbies, religious affiliations or political views. Such knowledge could possibly lead to a mixed-motive analysis if and when an employer must discipline an employee. In other words, an employer's knowledge of such personal information may make a jury more likely to conclude that the employer made a disciplinary decision for reasons unrelated to the employee's ability to perform the job.
Best Approaches The best approach for your company is dependent upon a number of factors, including the nature of your business, your company's strategic goals, and the composition of your workforce -- including current use of social networking by management. A social-networking policy must comply with applicable federal and state law, including labor and antidiscrimination laws, and HR leaders must ensure that the policy is drafted with sufficient flexibility to respond to real-life situations. In revising and updating your Internet-use policy, you may want to consider implementing some of the following restrictions and/or guidelines: * Prohibit anonymous postings; * Prohibit postings on behalf of the company -- unless the organization's business strategy includes employee postings on the company's behalf -- and/or require any controversial postings be done from an employee's personal account; * Require a disclaimer, making clear that each post is the author's own opinion and not that of the company; * Limit work use to postings that create corporate opportunities; * Establish disciplinary guidelines for negative comments made about the company's products, services, management or employees; and * Incorporate existing related company policies, specifically reminding employees of their obligation to abide by those policies, and protect the company's trade secrets and other confidential information. Finally, any new policy must be distributed to new and existing employees. Obtain each employee's signature of receipt and understanding of the revised policy, to ensure readiness for potential litigation.
In today's connected world, continuing futile efforts to prohibit personal Internet use in the workplace is ineffective and antiquated. In a time where employee morale continues to suffer as layoffs and salary reductions prevail, a liberal Internet-use policy that recognizes the value of and permits social networking in the workplace can have an overwhelmingly positive effect on employee morale. At a minimum, companies should be revising their existing policies to ensure they expressly include and apply to the world of social networking. Companies seeking a more contemporary approach should consult with counsel to craft a policy and/or guidelines appropriate for that particular environment, designed to grow business and implement more progressive business strategies.
Greg Andrews is of counsel in Dykema Gossett's Labor & Employment Group. His litigation experience is focused on representing corporations of all sizes in a wide variety of industries in ADA, FMLA, Title VII and FLSA single-plaintiff and class-action cases, among other areas. Jennifer Gonzalez, an associate in the Labor & Employment Group, has successfully defended numerous employment cases involving various employment-law claims. She also counsels private employers on best policies and practices to reduce their liability and day-to-day employment-related issues.
January 1, 2010 Copyright 2010© LRP Publications |
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