Social Networking by Employees: Is It Any of Your Company’s Business?

By Paul Bressan and Jessie Reider

Social networking — Facebook, Twitter, MySpace, LinkedIn, blogs — has exploded. Never has information been disseminated so quickly, or so globally. This can be a tremendous marketing resource, but the advantages come at the price of increased risks for employers. Consider the following scenario:

Shelly has a Facebook account, and she regularly posts status updates on what she has been doing at work. Through her Facebook account, Shelly is “friends” with co-employees, supervisors, customers/clients and a variety of other acquaintances.

After a long week of 18-hour workdays, Shelly posts her status as, Longest week ever! BossLady made me work non-stop the whole week. How can I possibly produce quality work without rest? Guess quality isn’t that important to some people….As soon as this merger closes, home to sleep! Finally!

Shelly’s post is quickly reviewed by many of her “friends,” and she receives some comments. The exchange of information reveals the identity of the other company in the merger. It also calls into question Shelly’s (and therefore her employer’s) quality of work on the merger.

When Shelly’s “BossLady” learns of the posting, she does her own Internet search and finds some pictures of a scantily clad Shelly, surrounded by drug paraphernalia, taken during a time when Shelly was on sick leave from work. Shelly’s boss takes these pictures to Human Resources, demanding that the company fire Shelly immediately.

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Issues with the use of social networking

As this scenario shows, a number of employment and intellectual property issues can arise from an employee’s use of social networking sites, such as the following:

  • Confidentiality — Intentionally or unintentionally, network exchanges may reveal confidential company information, as well as confidential information of a company’s customers or clients. Such information could even include trade secrets that a company or its customers/clients have gone to great lengths to protect.
  • Discrimination/Defamation/Harassment — Social networking exchanges may contain discriminatory, defamatory or harassing material. Depending on the circumstances, such postings could expose a company to claims that are based on this posted material.
  • Privacy — Employees who post on social network sites, or who post their pictures on the Internet, may not expect their employers to uncover this material, much less that they could subject themselves to disciplinary action (including termination of employment) for this activity. Such employees often have rude awakenings. A new term, “doocing,” has even evolved to reference the termination of an employee for the content of the employee’s Internet posting. Employers are equally dismayed when employees file claims against them for monitoring their Internet activity and taking disciplinary action against them for the activity.

There are federal laws in place that control aspects of monitoring employee activity on the Internet, as well as common law and even Constitutional protections in some jurisdictions (such as California) that protect privacy. The application of these protections often depends on whether the employee has a reasonable expectation of privacy, whether the social networking was on company time, with company equipment and with a company identified address, or whether the postings were done on an employee’s personal time, using an employee’s personal, password-protected account.

Employers should take note of the fact that they may learn too much information (“TMI”) from the monitoring of an employee’s social networking activities, even if the monitoring is lawful. For example, an employer may obtain information regarding an employee’s religious beliefs or sexual orientation. If an employer were to take subsequent disciplinary action against that employee for a lawful and proper reason, the employee may nevertheless claim that the disciplinary action was unlawfully based on information obtained by the employer regarding the employee’s religious beliefs or sexual orientation.

  • Content — Just as with the spoken or written word, certain Internet speech is more protected than other forms of Internet speech. For example, an employee who is engaged in “whistle-blowing” likely enjoys greater protection than an employee who is harassing another employee or who is revealing a company’s trade secret. Moreover, there is an evolving body of law that seeks to protect an employee’s lawful off-duty activity.
  • Time Management — Although a company allows its employees to engage in social networking using company resources, this does not give the employees the unfettered right to engage in this activity excessively throughout the day. Companies should take steps to ensure that its employees are not abusing this privilege.
  • Policies — The most important step that a company can take to maintain control of social networking on company time, with company property, is to promulgate a policy regarding the use of the Internet that includes provisions with respect to social networking. Among other things, this policy should specify the following:
    • Employees are fully responsible for any online activity using the company’s address or using company resources.
    • Employees should make certain that their postings are accurate, and they should correct any inaccurate statements they make.
    • Employees have no expectation of privacy with respect to their use of the company’s network systems, and the company may monitor their use to the fullest extent permitted by law.
    • Discrimination, defamation, harassment and other such inappropriate material is strictly prohibited.
    • The use of copyrighted material must be authorized.
    • Employees should never use the name of a customer/client without proper written permission.
    • Employees must maintain the confidentiality of the trade secrets and proprietary information of the company and its customers/clients.

Conclusion

As companies allow their employees to use the various social networking vehicles to seek business opportunities, it becomes increasingly important for these companies to maintain proper control of this usage. In short: it is your business.

Paul Bressan is a Shareholder with the law firm Buchalter Nemer (www.buchalter.com), based in Los Angeles with the Firm’s Labor & Employment Practice Group. Contact him at pbressan@buchalter.com. Jessie Reider is an Associate in the Firm’s Intellectual Property Practice Group in Los Angeles. Contact her at jreider@buchalter.com.

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