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Employment Law Alert: Social Networking

May 27, 2010

SOCIAL NETWORKING BY EMPLOYEES

– WHAT IS AN EMPLOYER TO DO?

With millions of Americans participating daily on various social networking websites, it is safe to assume that many of your employees are among them, and maybe in ways not favorable to their employment or your organization.  As an employer, you can guard against social networking by employees that may be harmful to your business or organization, but you need to exercise caution and understand the limits on controlling and monitoring employee use of social media.

HOW FAR IS TOO FAR?

Employers have interests in (i) limiting and monitoring employee postings on social networking and other websites, particularly postings that might cast the employer in an unfavorable light, and (ii) viewing postings by employees and prospective employees that may provide information about the poster that can be used legitimately for employment-related reasons.  But in certain situations, those interests may run up against laws designed to protect employee privacy and other rights.  For instance:

• Federal labor laws may limit an employer’s right to take action against an employee who posts complaints about his employer. 

• These laws also prevent “spying” on some types of employee activity – which may be interpreted to prevent employers from monitoring (a) public websites for employee participation on those sites and (b) other employee communications. However, in some circumstances, monitoring employee emails, telephone and other communications that utilize employer-provided equipment may be permissible – if the employer has a properly drafted and published policy.

• Employers also need to be careful about searching social networking and other websites for information on applicants and employees.  For example, if the search reveals information about the person that may be a characteristic protected by non-discrimination laws – such as age, nationality, mental or physical condition, religion, sexual orientation or even political affiliation (depending on what state and local laws govern the employer) – the employer may face an allegation that a subsequent adverse action (not being hired, not being promoted, terminated, etc.) was impermissibly motivated by the information learned.

POLICING THE NEW FRONTIER

Many problems can be avoided by (i) establishing a company social media policy and by keeping it updated, (ii) training employees about the policy and acceptable social networking activities, and (iii) administering and enforcing the policy consistently.  While an effective social media policy must be tailored for a particular organization’s culture and operations, important elements for such a policy that should be considered include:

• Protecting confidential information of the company – employees cannot blog about, post, or otherwise discuss or disclose sensitive information, such as trade secrets and the identity of clients and customers. 

• Protecting employee information – confidential information about employees should also remain confidential.  Employees need to respect the privacy concerns of other employees.

• Prohibiting conduct that is also inappropriate and prohibited offline (such as discriminatory, harassing or violent conduct, or illegal activities), and making clear that conduct that would be grounds for discipline (including dismissal) if perpetrated “in real life” is subject to the same punishment if done online.

• Instructing that use of the internet and social media sites (if allowed) must not interfere with work or violate company policies.

• Clearly stating that employees have no expectation of privacy when using the employer-provided computer network and other communication systems.

• Prohibiting use of the company logo or other intellectual property without explicit approval by authorized company personnel.

• Warning employees that their postings cannot suggest or imply that they are speaking on behalf of the company.

The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers Employment and Labor Law Group, or the Shulman Rogers attorney with whom you regularly work.

CONTACT

Gregory D. Grant
301-230-6578
703-684-5200

Meredith “Merry” Campbell
301-255-0550