As social networking continues to play an increasingly
larger role in our society, it comes as no great surprise that
these networks are beginning to pose a threat to both employers and
employees. Although these sites, such as Facebook, Twitter and
MySpace, provide an excellent chance for employers and employees to
cast out information to a wider audience than before, this benefit
also comes with a price.
by Michelle Tessier, Esq.
Because social networking sites have so quickly infused
themselves in our society, it is unlikely that these benefits and
dangers will be leaving us anytime soon. Instead, it is essential
that both employers and employees become well-versed in the
challenges caused by these programs, so that the workplace may
embrace these changes rather than suffer any potential negative
consequences.
How does social networking have an impact in the employment
arena?
Although there are a large number of new challenges and
questions posed by the growth of social networking, it is helpful
for both employers and employees to be aware of the "key dangers"
associated with social networking in and out of the workplace. Some
of the more prominent themes presented by social networking that
should be kept in mind are:
1. Obtaining information the employer does not want to
know
Although one of the main benefits of social networking is the
ability to market oneself by infusing personal information into the
Web, information that is sensitive or protected may lead to a
responsibility by the employer to handle this information properly.
Because of the large number of federal acts associated with
discrimination, accessing information on a potential employee's
sexual orientation, handicaps and other protected information may
lead to an employee claiming discrimination further on down the
road. An employer would be wise to revisit its policy regarding
obtaining information about an employee or prospective employee to
address whether it has the appropriate safeguards in place to avoid
liability.
2. Privacy issues
Searching social networks can invariably lead to an employer
discovering information that may be considered private. Because
most employees think that what they do at home on the computer is
their private business, it is possible that discovering and/or
acting on this information may lead to a claim of invasion of
privacy. Although there is discussion regarding whether or not
information posted on a publicly available site comes with an
expectation of privacy, the fact is that acting on this information
may lead to a potential claim.
3. Employers monitoring employees use at work
There are many issues that arise from employees using social
networking sites during work time. Issues include, but are not
limited to: employer liability for employee's conduct on these
sites; policies related to proprietary issues; and reading and
acting on negative comments about their work. These issues pose new
questions to employers and employees about computer use in the
workplace.
What can employers and employees do to minimize
risk?
Although it is quite clear that the emerging popularity and
impact of social networking sites lead to some potentially
difficult legal problems for those on both sides of the workplace
relationship, there are a number of things that employers and
employees can do to maximize the benefit of these new tools, while
minimizing risk.
1. Employer use policies
One of the most effective ways of avoiding legal entanglement is
for employers to develop and distribute employer use policies that
clearly state the rules and expectations of employees at work.
Whether these policies are printed in employee handbooks or
employment agreements, these policies should clearly state that
employees have no expectation of privacy in anything they create,
store, send or receive using company computers, in addition to
laying out any other policy that the employer may deem
appropriate.
2. Employees should use careful discretion before
posting
Because employees may possibly face negative consequences by
posting remarks about supervisors, co-workers or sensitive business
information, it is wise for employees to be extremely
discriminatory in what they post. This means obtaining permission
from partners or clients before posting content about them, as well
as obtaining permission before posting any copyright
material.
3. Assume anything posted will eventually reach the person the
claim is about
In today's highly connected world, it is a mistake for employees
to believe that anything they post on social networking sites will
remain obscure. To avoid liability, it is important for employees
and employers to assume that their posted content will both be
discovered and have consequences, even when using a site that is
presumably safe via privacy setting and password protection.
Conclusion
Because of the tremendous power associated with social
networking sites, it is a mistake for both employers and employees
to assume that this dramatic shift in the way people communicate
will not affect their workplace. Instead, employees and employers
should embrace these tools as a way to expand their businesses,
while understanding the underlying dangers associated with these
sites. n
Tessier is an associate at Kenney & Sams PC in
Southborough, where she focuses on labor and employment
matters.