Facebook, Twitter and related social media provide significant opportunities for companies to build their brand, communicate with customers and expand their reach. Employees have embraced social media as readily, or even more readily, than Internet Infrastructure companies. Like other means of communication, social media outlets may be abused by both employers and employees alike.
Do you need a social media policy?
In general, I have to be dragged kicking and screaming to draft a new corporate policy. I really hate them. My biased viewpoint is that policies often function as a convenient way for companies to avoid taking action to address hard behavioral issues. Rather, the company drafts a policy that prohibits a certain activity, then begins to take disciplinary action. From my perspective, education and discussion often engender a positive corporate culture that minimizes discipline and encourages everyone to row the same direction. It also avoids policy fatigue where employees are presented with a fat binder to read and acknowledge on day one, and multiple updates and additions to policies that are neither read nor properly understood.
I am, however, a realist. I realize that the state of U.S. law is such that employers are required to notify employees what is required of them, and what is, or is not, permitted at work. As a result, many companies have confidentiality policies. Here is where you can incorporate social media into your general employment policies. If you have a confidentiality policy, you should revise it to specifically cover social media and similar technology.
Potential employees and social media.
Now that we all Google each other, it doesn’t seem farfetched to begin to review a potential employee’s Facebook site prior to making the hiring decision. I question the wisdom of this. While putting yourself online has generally been held by U.S. courts to show a reduction in your expectation of privacy in the online material, social media is a bit different.
When individuals interact in a social situation, they often disclose things about themselves that employers are simply not allowed to factor into their employment decisions. So, for example, a person’s Facebook page may disclose their religion. Once an employer knows that information, the fact that the employer knew the potential employee’s religion can be used in an employment discrimination suit. And honestly, don’t even think of “friending” a potential employee to learn things about them that the general public doesn’t have access to.
Employment investigations
A fact of life is that we all complain. Employees are no different. Courts have held, and Congress has legislated, that employers cannot generally prohibit employees from getting together. While this is generally applied to issues like labor organizing, it has also been applied to corporate policies that sought to restrict employees from getting together after work for a beer or otherwise socializing.
Social media is likely to be classified in the same category. As a result, employers are likely to find more and more employees venting about their employer on a social media site. Because these sites are searchable, companies are rightly concerned about protecting their brand, so that a new customer looking for the company doesn’t first learn that Bonnie in tech support had a bad day yesterday.
While employers can generally terminate employees for making defamatory statements about their employers, there is a fine line between defamation and simply complaining. A good confidentiality policy will prohibit employees from disclosing internal processes and disclosing non-public information about the company. An employer can take action based on unauthorized disclosures of this nature. However, terminating an employee for simply complaining about a bad day may cross the line.
Also important is how the employer learned of the employee’s actions. Employers must remember that the Stored Communications Act prohibits accessing electronic communications without authorization. I would say that monitoring an employee’s keystrokes or learning their MySpace password surreptitiously would violate the SCA. I also believe that “friending” an employee to gain access to secured information may also violate laws designed to curb activities like “pretexting.”
At base, I do think that acknowledging social media in your policies is a good idea. However this change should be coupled with a renewed effort to learn what aspects of your company may be bothering employees, and providing a topic for a Tweet you don’t want to read.
Edit 7/28/2009
A good description of twitter policies – good and bad – is here.
A very funny sketch about the utility of twitter
About David Snead
David Snead is a lawyer whose practice is focused on internet infrastructure providers. In his eleven years in this practice, he has represented clients including multinationals, middle tier hosting companies, and two guys, a server, a T-1 and a huge MasterCard balance.
A long-time WHIR contributor, David Snead is the Web hosting business's best-known legal expert. Through his WHIR blog, he offers a credible legal perspective on both specific actions in the Web hosting business and general developments in legislation.
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