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Bar News - April 15, 2011


Labor & Employment Law: Social Media in the Workplace: the Basics

By:


Julie A. Moore
Social Media. We hear this relatively new term all the time. While there is no question that websites such as Facebook and Twitter have a social function, the impact these social media applications have on today’s workplaces should not be underestimated.

Lawyers and their clients, both individual and corporate, need to consider how to manage social media in an employment setting. Social media is defined as modes of communication intended for social interaction via widely-accessible publishing techniques and equipment, most commonly using Internet-based technologies (though smart phones have their own social media applications). In short, social media is everywhere. Facebook alone has over 500 million users worldwide. When social media is used in conjunction with the workplace, its use extends far beyond social interaction, into a morass of legal complexity. While the use of this communication absolutely can have legitimate business purposes, its potential abuse has extended into new legal territory for all organizations, including law firms.

The Risks

Social media is growing, shifting, and evolving constantly. Each day, new types of equipment and social sites are springing up everywhere. Policies regarding email correspondence and telephone communication in the workplace have been eclipsed by the need to address texting and instant messaging, pagers, blogs, Facebook, Twitter, LinkedIn, and the ubiquitous Blackberry. Everyone is communicating electronically, and their communication – once it is posted – is both permanent and public. The new risks that these communications raise require that all organizations re-visit their current guidelines, policies, and handbooks to ensure that their scope has been widened to address specifically the impact of social media issues on employment practices and behavior.

Setting Policy

Employers, including law firms, must get in front of the risk by conducting an immediate audit of their existing written policies, starting with the employee handbook. Every rule, regulation, and guideline established regarding employee behavior – discrimination, harassment, other unprofessional and inappropriate conduct – must now extend to include social media specifically. What wasn’t tolerated before in speech and behavior should similarly not be tolerated when conducted by social media. While in the past, employers could generally focus on conduct occurring within the workplace, now they must consider that harassment, discrimination and workplace civility policies need to encompass employees’ activities on social networking sites, even if this activity occurs during non-working hours and even outside of the office. A designated representative of the law firm or organization should stay abreast of recent legal rulings and ensure that the employee handbook is updated to reflect them.

In addition, a separate policy regarding the use of social media must be developed. The handbook and the specific policies can no longer be considered stagnant documents. The evolving nature of the media and its access, combined with new legal precedent and best practices, requires that employers maintain a vigilant and regular review of the policies so that they remain current and legally accurate. The language should be sufficiently broad to include not-yet-launched tools and sites ("…. including, but not limited to …."), while providing examples of the most commonly-used media and including a disclaimer that reinforces that the policies apply to equipment and access not specifically mentioned in the handbook or document.

Determining Scope

Many employers find that there is an appropriate time and place for employees to use social media to support and to further the business.
  • The administrator may use LinkedIn profiles to preview and screen potential applicants, provided that there is a legitimate, stated business reason, applied equally to all candidates, which does not include any prohibited discriminatory categories. Levels of screening here are important.
     
  • Employees may use social networking sites as a way to reach a specific group of clients, to announce and share services offered or upcoming seminars, and invite reviews.
     
  • Marketing may use social media to form user communities for the organization’s services, conduct surveys, share newsletters or legal updates, or provide a forum for professional discourse.
If the employer maintains a presence on social networking sites such as Facebook, or encourages its employees to reach out to clients via Twitter or LinkedIn, the employer should provide concrete guidelines about what is appropriate and what is not. In a law firm environment, care must be taken not to compromise legal ethics or client confidentiality in the name of a pithy Tweet or Facebook status update. Employees should be advised that, to the extent they maintain their own personal profiles, they are responsible for the content appearing there, and that they must be mindful that their online presence may be viewed by clients, colleagues and opposing parties and counsel.

One murky area involves the organization’s information. While not sharing confidential employer information and the misuse of any trademarks and logos are clear-cut, expressing opinions about the organization may not be, and each individual case needs to be evaluated. In November 2010, for example, the NLRB ruled that an employee cannot be terminated for posting critical remarks about her supervisor on Facebook, as that was considered to be protected activity. After surveying the legal landscape, therefore, the employer must decide what is and what is not acceptable before crafting the policies and educating employees about them.

Educating the Employees

The addition of social media to the employee policies and guidelines is significant, given how pervasive the use of these sites and tools have become. An employer’s education and training efforts should include these essential elements:
  • Circulating a revised handbook or handbook sections that require the employee’s "acknowledgement of read / receipt" signature.
     
  • Distributing and posting of a new policy document, written specifically to address the employer’s social media, including examples and acceptable use.
     
  • Setting clear guidelines regarding any expectation of privacy when using the employer’s equipment, time, and access.
     
  • Crafting a procedure and contact information for employees seeking clarity, information, or reporting abuse; adapt a "When in doubt, don’t send it out" policy as the default until the employee receives guidance from the appropriate HR or legal representative.
     
  • Providing an unambiguous message regarding regular and unannounced auditing and monitoring of equipment use and content, as well as outlining with specificity the consequences of social-media abuse.
     
  • Expanding and defining the constraints regarding mention of the employer even while the employee is on personal equipment and time; define what’s allowed and what’s prohibited.
     
  • Reinforcing that all of the current policies, guidelines, and restrictions regarding employee behavior extend to include social media communications.

Training the Managers
 
All of the guidelines above apply to management, including partners and officers, as well as to the employees. However, staff in supervisory positions must be coached on the dangers of "friending" an employee on Facebook, sending performance-related information and messages via social media, or commenting on comments/pictures/blogs of employees. Any and all of these could be interpreted as harassment, creating a hostile work environment, even "cyber-stalking." Conducting seminars for the management team to review the new guidelines and policies, answer questions, or provide suggestions is advisable. Reinforce that any communication conducted over social media is public, permanent, and able to be shared with anyone. Encourage the managers to hold similar sessions with their direct reports and be role models of appropriate behavior.

Embracing and not ignoring social media will serve lawyers and their clients well today and in the days ahead.

Julie A. Moore is the president of Employment Practices Group, providing employment law and human resources consulting to employers and schools. For more information, visit www.employmentpg.com.

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