Legal Social Media at Work

Category: Employment Law
Posted: 11-01-2013 04:00 PM
Views: 47662
Synopsis: The legal use of social media has become a huge issue in our private and public organizations. Educating employees on the proper and improper use of social media at work and at home will reduce liability.

Social media seems to have taken over our lives.  Facebook, Linkedin and Twitter seem to be everyone we look.  They allow us to keep in touch with our family and friends and at work they help us network, market and provide better service for customers. 

However, this powerful technology does not come without risk. Increasingly, the line between our work and personal lives has become blurred. Social Media networks have become a mix of family, friends, co-workers, colleagues and even customers. Therefore, when information is shared on Social Media a wide audience from every corner of a person’s life has immediate access to that information.

This can make “posting” a dangerous activity. Every piece of information shared on social media immediately leaves a permanent record that is virtually impossible to erase. The potential to violate employment laws, improperly release information or to damage your employer’s reputation is great. One post made in anger, ignorance or even by accident could result in a whole range of problems including legal headaches. Increasingly, attorneys are collecting social media records as part of litigation. The need for careful, considerate and legal use of social media has never been more important.

So how do we define Social Media? Social Media is any technology that allows users to view and share content. This includes blogs, micro blogs like Twitter, media sharing sites like Pinterest, Instagram or YouTube, comment and rating sites like Yelp, news sharing sites like Digg and Social Networks like Facebook, Linkedin or Google Plus. Most social media overlaps into several different categories, however the defining characteristic is that information is shared and viewed either publicly or through a network of users defined by the owner of the account.

So what shouldn’t you do on Social Media? Well, there are a whole lot of things. Let’s call these things “The Never List.”

Defamation

Never post negative comments, opinions, conjectures or unproven allegations about anyone else. This applies to co-workers, colleagues, government officials, vendors and customers.

Publicly complaining or gossiping about your boss or coworker through social media is a bad idea! This is especially true if you know, or even should know, the content to be untrue. This type of activity could make you liable in a defamation claim.

Copyright

Never post messages, articles, pictures, music or video without permission. Almost everything you find on the Internet is copyrighted. Before posting anything, make sure your organization has permission first.

The same is true of co-workers. Before posting pictures or videos of a co-worker make sure that they give you permission. And if you want to include quotes, advice, messages or any other written or verbal communication by a co-worker then you need permission for that as well.

Confidential company information

Never post information that is unavailable to the public. Revealing things like confidential financial data or the date of a merger or product release could lead to insider trading – a very serious legal offense that often results in jail time. Before you post any information about your organization, no matter how innocent, make sure you get permission.

Pictures and Videos

These days, nearly everyone in the workplace has a smart phone with a picture and video camera. Before posting any media captured in the workplace or at work events, you must obtain permission from your employer and the individuals shown in any pictures or videos. The potential to violate your co-workers, vendors or customers’ privacy rights in addition to the potential to divulge confidential information or trade secrets makes this permission essential in any workplace.

Confidential customer or co-worker information

Never post information about your co-workers, customers, vendors or suppliers. Disclosing information such as credit card numbers, passwords, private health information, social security numbers, or ever the names of customers or suppliers could mean big trouble. The same holds true for all types of private information such as information about a divorce, death or illness. Even when you have the best intentions, these topics are always off limits. When in doubt about what can be posted, consult with a manager or your legal department.

Trade Secrets

Never post trade secrets about your organization’s operations, products or services. Releasing any confidential business information that gives your employer an advantage over its competitors is strictly off limits.

Harassment & Bullying

Never post offensive messages, jokes, pictures or videos that violate your organization’s harassment policies or that use social media to harass or bully a co-worker. In particular, posting, sharing or commenting on offensive material about race, religion, gender, disability, age, sexual orientation and family status is strictly prohibited.

Dishonesty

Never post false, inaccurate or exaggerated information about your organization’s products or services. The Federal Trade Commission considers this false advertising. This includes inaccurate reviews and claims about your competitors’ products and services as well. In addition, when posting about your employer, you must disclose your status as an employee of the organization.

Overuse

Never use social media for personal use during work hours. Organizations around the world lose billions of dollars a year due to the excessive use of social media. Limit your personal use to break times and be sure to use personal devices only.

Disloyalty

Never post negative or disloyal comments about your employer. Social media is a public forum where employers have the right to expect loyalty from their employees. In today’s world, posting negative or disparaging comments about management or your organization is equivalent to advertising on a billboard. While the law is constantly evolving in this area, the best practice is to avoid posting any negative comments in reference to your organization.

Illegal or immoral activities

Never post pictures, videos or text showing or describing engagement in illegal or immoral behavior such as drug use, theft or vandalism. Even after work hours, you are a representative of your organization and your behavior reflects positively or negatively on your employer.

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So by now you might be thinking, “What about my rights to privacy and free speech?”

Many employees mistakenly believe that their constitutional rights cover personal social media use; however these rights only protect you from the government, not your employer. Government employees enjoy a limited amount of additional rights at work, but are also subject to the same guidelines as private employees.

To put it bluntly, you should have no expectation of privacy on your organization’s computers and Internet connections and every employee must assume that information exchanged on social networking sites can and will be accessed by their employer. This includes information that you may post after work hours on your home computer or personal device. If your post violates company policy, disciplinary action may be taken by your employer. Severe violations could even result in termination of your employment.

If you are a manager, there are even more dangers that come with social media.

At least 65% of hiring managers admit to checking prospective employee’s social media pages as part of the applicant screening process. However, this can open up a manager to liability if he or she inadvertently finds information about a person’s protected class status that would not have been divulged as part of the interviewing process. It can be difficult to prove in court that information such as disability, family status or sexual orientation was not used to deny an applicant.

The same is true for managers who are in social networks with the employee’s they supervise. It can be difficult to prove that information learned in these networks did not influence an employment decision such as a work assignment, promotion or termination.

Likewise, an employee outside of a manager's social network could claim that employment decisions were made against them as a result of not being part of that circle.

As a general practice it’s best for a manager is to avoid social media relationships with the employees they supervise.

Although laws and court interpretations are constantly changing, one thing is for certain – Social Media is here to stay. And while it can enhance all of our lives, the need for careful use is more important than ever.  Make sure that your employees are trained on the legal use of social media.

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