Social Media’s Real Legal Issues - by John Sumser - HRExaminer

When companies adopt social media, they are usually concerned about people saying bad things about them.

When companies adopt social media, they are usually concerned about people saying bad things about them. Their first instinct is to issue a policy that dictates what people can and cannot say. This can often backfire, since being able to talk about wages, hours and working conditions is protected by the NLRA. Employers want to be careful about disciplining employees for off-duty conduct.

Basically, employers can’t have the one thing they really want. The law prevents it.

But there are some important legal issues to consider when employees are using social media.

Legal/Liability Issues

  1. Discrimination/Harassment– Social media posts are evidence. Twitter is public and the rest is easily accessible. So if employees, particularly managers, make discriminatory comments or use social media to harass employees in a protected class, the company can be liable.
  2. Intellectual Property– Employees need to understand exactly what of the company’s trade secrets and internal strategy and financial information is confidential. This does not mean having them sign a Nondisclosure Agreement where “Confidential Information” includes the toilet paper in the men’s room. They need training on what is secret and why. Do your managers know what information can and can’t be discussed outside the company?
  3. Other Personal Information– Personal information about employees or clients should not be discussed on social media, not even on Facebook where people think it’s private. It’s not. There are many Federal and State laws that deal with employee privacy, but if it has anything to do with their medical, financial or sex lives, don’t talk about it on social media.
  4. Public Companies and Regulated Industries– Do your employees know what information is covered by insider trading regulations? It’s broad and can potentially include almost anything relating to finances or changes at a publicly held company. Other industries, especially the financial/banking industries have specific rules about what information can and cannot be disclosed.
  5. Employee Safety– Employees should not use location features or check in on Four Square if it could compromise their safety. Don’t check in when you’re making the night deposit.
  6. Company Strategy–Also don’t inadvertently reveal confidential strategy information. If an executive from company A is constantly checking in at the airport and then a city where company B is headquartered, it doesn’t take a rocket scientist to wonder if merger discussions are going on.
  7. Computer Hacking-- While employers can generally see anything done on their networks or devices, if either the company or employees do not have authority to be in someone’s account and delete, add or change something, it is potentially computer hacking.
  8. Copyright and Fair Use– If employees are using social media as part of their jobs and posting content to company accounts or webpages, they need to understand the limits of copyright, how to properly use an excerpt and give attribution. They also need to understand that they can’t just copy all or large portions of  someone’s article, graphic, photograph or artwork without the author or artists permission.
  9. Privacy Policy- If you have a company website and you have subscribers or followers, you may need to have a privacy policy that sets out what information gets collected and how it gets used.
  10. FTC Disclosures– If you have employees saying great things about your company on their personal blogs or anywhere the relationship is not open and obvious, they need to disclose that they are employees or are getting paid to write the reviews/endorsements/glowing and gushing recommendations.
  11. Defamation- Defamation is publishing something untrue about someone that harms her reputation. If it is by your employee on your website or company page, you will probably be liable for it.

Legal/Practical Issues

  1. Office Drama–Social media does not cause office drama. Social drama has always existed and always will. But social media does amplify it. Do not post when you are angry, sad, lonely, tired. Do not post after 10 pm or two drinks, whichever comes first.  If you have common sense and good judgment, social media is a great tool. If not, it’s evidence.
  2. Company Monitoring– The more you control it, the higher the chance the company will be liable. But company’s also can’t just bury their corporate head in the sand and pretend like they don’t know about what’s going on, especially if it rises to the level of harassment or whistle-blowing.  So if the company has a Facebook page or Pinterest page, make sure that several people look at it periodically to see what’s going on. But don’t stalk your employees or monitor their every move because that just creates a culture of suspicion and control.
  3. Who Owns Contacts?– Figure out at the beginning, especially with your recruiters, who owns the contacts developed through the employee’s use of social media. Hint: Agree that both the company and the employee will get a copy of the contacts when the employee leaves and decide who gets to continue the account after the relationship ends. Don’t wait until its all screwed up and you mistrust each other.
  4. Terms of Service– Get someone to read the terms of service with any account the company opens. Get a lawyer to translate them into English if you need to. Make sure that you are willing to sign up to indemnify and pay Pinterest’s legal fees if they get sued for something on your page.

It’s important to understand these issues and train employees to recognize them and handle them professionally. These are not things you can just slap a policy on and expect people to understand and do.

Here are some additional, more comprehensive articles on many of these issues. If you want to know more about any of them, leave a comment and I’ll answer or do a follow up blog post.

Additional Resources

8 Reasons Social Media Policies Backfire

What if Your Policy Violates the NLRA?

Trash Your Social Media Policy

Behaving Badly Online and Defamation

It’s No Secret: Why Contacts Aren’t Trade Secrets

Social Media at Work–Who Owns the Content?

Social Media, Blogging and Copyright

Social Media Policies: Who’s In Control?

Don’t Take Bad Social Media Advice

Looking Bad

FTC Social Media Disclosure Requirements

How Employers Can Still See Employee Social Media Accounts

 
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