It's important for business owners and managers to be proactive in creating policies that address the issue of social networking. Not only do these types of policies need to address matters related to employees spending time engaged in social media usage in the workplace, they also need to address issues associated with discussing company-related information via social media websites.
Developing a Social Networking Policy
If your employee handbook has not been updated in a while, chances are that you don't yet have a social networking policy. Even if you do have a policy in place, it's certainly advisable to make sure that it is up-to-date and accurately reflects your company's practices when it comes to employee social media usage, as well as contemporary regulatory concerns.
Before implementing a new policy or changing your existing one, be sure to consult with legal counsel. Implementing even small wording changes without seeking legal advice can put your company at risk.
Time Spent Using Social Media
Policies regarding time spent engaging in social networking in the workplace vary from absolute prohibitions to allowing occasional use. It's important to realize that the issues associated with employees who spend time playing on social media sites when they are supposed to be working is no different from dealing with other "goofing off" activities. This a matter of employee discipline for managers to deal with. An employee who plays on Facebook while she is supposed to be working is no different than dealing with one who makes personal calls all day or plays games during the workday.
- If you have a policy that specifies activities that employees should not engage in during the workday and you want to prohibit social networking, expand that policy to include using social media sites for personal use.
- If you want to allow "occasional" use, clearly define what you mean by "occasional" and be prepared to discipline accordingly, in a non-discriminatory manner. If you go this route, you'll need to be prepared to monitor time spent in such activities and be consistent in doing so.
- While using technology to block access to social media websites may prevent social media usage via your company's equipment, employees can still get to the sites from their personal cell phones or tablet devices. If employees are allowed to bring such devices into the workplace, your policy should address when and how usage is allowable.
Computer Systems and Equipment
According to University of Maryland Francis King Carey School of Law, "employer liability is more likely when employees post content onto social media websites in the scope of their employment," however, "employer may also be found liable for an employee's use of social media in a number of other scenarios" in state and federal courts. For this reason, it's essential to have a solid policy that prohibits all types of misuse of the company's electronic and computer systems addressing social networking as well as other online and electronic communication activities.
Company policies should address usage of company computer equipment, networking systems, email accounts, cell phones, tablets, and other digital devices for social networking, as well as other online activities. Any procedures that you use to identify such activities must be in compliance with the Electronic Communications Act. Your policy should specifically state that employees should have "no reasonable expectation of privacy" regarding information sent or received via company systems, devices or accounts.
Sample language to consider, with approval from your legal counsel, includes:
- Do not open personal social networking accounts with your company email address, as using the company domain name may imply that you are acting on the firm's behalf.
- Unless your job specifically requires you to participate in Internet postings on behalf of the company, you should not visit, post on or monitor such websites using company equipment or electronic communication systems.
- An employee's social media use that violates company policies or state or federal laws may subject the employee to discipline up to and including termination.
- Employees who become aware of postings that violate company policy or that pose potential legal issues should report them to the appropriate representative (provide a way to report violations).
Company Reputation and Privacy
Your social networking policy should also address limitations specific to social media communication that has the potential to impact the reputation and privacy of the company, keeping in mind that you can only go so far in placing limits on what employees can say. While you don't have to let employees goof off at work and you can certainly prohibit illegal and inappropriate activities using company resources, you can't have a policy that, in essence, puts a "gag order" on your employees.
Under the National Labor Relations Act, employers cannot, as clarified by the National Labor Relations Board, implement policies that infringe on an employee's inherent right to free speech or the right to engage in collective communication and other activities to improve working conditions. Policies that are too broad, such as ones that prohibit employees from making negative comments about their employers, are not in compliance with the National Labor Relations Act. However, you may want to ensure that your policy does place appropriate limitations on company-related communication.
Sample language you may want to consider including in your policy (if approved by your attorney) includes:
- Employees are not to state, suggest, or imply that they are speaking on behalf of the company (unless they are doing so in an official capacity).
- Employees who identify themselves as such should state "The views expressed in this posting are my own, and do not reflect those of X company or its affiliates."
- Employees are not to use the company logo or trademarks without express permission.
- Verify that anything you post via social media websites is in compliance with the Copyright Protection Act.
- Your obligation to protect the privacy of confidential information to which you are exposed through your position with the company continues during social media interactions.
Related Issues to Consider
Discipline Based on Social Media Activity
People who engage in social networking activities often share quite a bit of personal information about themselves. As an employer, it's natural to wonder if you can use such information in making decisions about the terms and conditions of an individual's employment. As with so many workplace issues, the answer is yes and no.
Consider the following situations:
- If your employees sign a confidentiality agreement and they post company secrets on Twitter, then certainly that is an issue for discipline. The situation is different, however, if an employee is merely voicing her opinion about her boss that is being a jerk - a right that is constitutionally protected - then you cannot take disciplinary action.
- If your Family Medical Leave Act (FMLA) policy has a "no moonlighting" clause and an employee who is on an approved leave posts something about her new part-time job on her Facebook page and you are able to verify that she is, in fact, working another job while on leave for your company, then you can take disciplinary action. However, the disciplinary action you can take in this situation is not based on social media usage, but rather violation of the FMLA policy, or FMLA fraud. If, though, you don't have a "no moonlighting" clause in your FMLA policy, then you do not have grounds for disciplinary action in this situation at all.
Protected Activities
If an employee is engaged in a protected activity via social networking activities, then you cannot take disciplinary action as a result. Employers cannot fire or otherwise discipline employees for actions protected under the National Labor Relations Act. Examples of protected activities include:
- Seeking opinions for co-workers related to a work issue
- Commenting on job performance concerns
- Commenting on issues with co-workers
- Making statements of protest about supervisory decisions or actions
- Extending a "concerted activity" (such as attempts to lobby co-workers to consider unionizing) that started at work
- Voicing concerns about conditions in the workplace
Exercise great caution in this area and consult your attorney before taking disciplinary action as it relates to employee social media activity.
Individual Right to Privacy
While you may have heard a rumor of an employee making certain kinds of statements via social media profiles, you cannot require workers to divulge such information or provide you with access to their social media sites. According to Gobal Investigations Review: "While some states have some exceptions for investigations of employee misconduct, requiring employees to provide their employers with the login information for their social media accounts is generally always prohibited." Attempting to require employees to provide a company representative with personal social media login information is a clear violation of the individual's privacy rights. This is just as true during the recruiting process as it is after an individual has been hired.
Expect Changes to Continue
The need for employee and workplace social networking policies is one that is relatively new. As time goes by, the federal and state regulatory agencies that enforce various employment laws are likely to issue clarification and guidance as cases are heard and decisions are made. Keep up with legislative changes related to this important and sensitive topic so you can be sure that your policies - as well as your procedures for enforcing them - stay current and compliant.
