by Jack B. HarrisonUse of social media increasingly exposes employers to potential liability for what their employees may do or say in various social media forums or for the manner in which an employee uses various emerging technologies. This development makes it important for employers to develop, implement, and enforce clear social media policies in the workplace in order to avoid potential litigation and liability.
How can an employer face litigation and potential liability based on what an employee may do on a social media website or based on an employee’s use of some emerging technology?
Here are just a few examples:
- Federal Equal Employment Law (Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act), as well as similar state laws, protect against unlawful employment practices in the workplace. For example, where an employer knows its employees are being sexually harassed through social media and takes no action, that employer arguably violates the law.
- The Fair Credit Reporting Act prohibits an employer from obtaining and using some types of background information without first obtaining authorization from the employee or prospective employee. Where, for example, a supervisor uses a mobile phone application to check an applicant’s credit record and then refuses to hire her based on what he learns, may subject the company to liability if authorization has not been provided or if the proper notices have not been given.
- The Health Insurance Portability and Accountability Act protects against the unauthorized disclosure of personal health information. But imagine a situation where hospital employees post details of patient medical care to their Facebook page in describing their day. Such postings could expose the employer to HIPAA liability.
- The Uniform Trade Secrets Act, which has been adopted in some form by the vast majority of states, which protects against the disclosure, misappropriation and use of a company’s information, where the economic value derives from the fact that is not generally known to and not readily ascertainable by proper means and the owner takes reasonable steps to protect its secrecy. An employee who discloses his former employer’s trade secrets on his new employer’s website or on its blog could subject the new employer to liability.
These examples are only a few of the various theories under which an employer could be found liable for an employee’s use of social media.
An effective social media policy should:
- Fit within the strategic vision of how the employer uses electronic media in its business;
- Be consistent with the employer's policies on: discrimination, harassment, retaliation, ethical practices, intellectual property, trade secrets, information technology, and technology/electronic resources use policies;
- Be clear about who the policy applies to and specifically identify the media to which it refers, including social networks, blogs, YouTube, Twitter, text messages, bulletin boards and chat rooms;
- Contain clear statements about limitations on expectations of privacy, including the employer’s ownership of the computer, the employer’s right to monitor and access social media during and after employment, and the existence of an “audit trail” as to activity conducted on a company computer;
Regarding employer-sponsored social media:
- Require employees to take responsibility for what they post, to create excitement about the employer’s business and to add value; to be respectful and use good judgment; to complain to human resources about any misuse of social media.
- Prohibit employees from disclosing company confidential and trade secret information; posting personal and privileged information like attorney-client and doctor-patient communications; soliciting for non-company activities; slacking; “friending” subordinates on Facebook or similar sites; posting anonymously or pseudonymously; and violating other company policies through the use of social media.
Regarding non-employer-sponsored social media:
- Require employees to comply with all company policies; to post a disclaimer for any comments relating to the company; to be truthful and respectful; to resolve human resources complaints internally; to contact HR or a manager for needed clarification.
- Prohibit employees from disparaging the company, its employees, and the competition; from using the company’s graphics or photos of the company; from posting anonymously or pseudonymously about the company; and from violating company-mandated blackouts.
Finally, the policy must state clear consequences for violations of the policy and be implemented in a manner to insure that managers, information technology staff, and other employees are trained to understand and follow them. Additionally, an employer will have to monitor, enforce and re-evaluate the policy as necessary.