According to the Society of Corporate Compliance and Ethics survey on what companies are doing with social networking compliance, there are over 50% of companies that either do not have a social networking policy for their employees to follow, or do not know if they do. After running across a couple of law firm client alerts on this very topic, I thought I’d take a quick look and build an ad hoc bibliography on what attorneys at major law firms are saying lately on this topic. [Big thanks to MyCorporateResource.com for helping track down a few of these]
What are the best practices for companies in creating and implementing policies regarding their own and their employees’ use of social networking sites and Internet forums?
In light of the clear and significant increase in both the number of employees using social networking sites and the amount of time spent by employees on such sites, employers must consider whether a policy on such conduct is appropriate. The content, application, and tone of a social networking or related policy, of course, will differ depending on the employer and its preferred approach to human resources/employee relations issues. Additionally, as with any policy, an employer should only adopt a social networking or related policy if it is prepared to police and enforce the policy, and do so consistently among all employees.
Employees might make that assumption if the employer does not have any policy addressing Internet use generally or social media use in particular, or if a general Internet policy permits incidental non-business use of the employer’s Internet access. An employer can defeat the assumption without blocking access to social media sites by specifically informing employees in a policy that use of the employer’s electronic resources to access social media sites for non-business purposes is prohibited.
The Internet is an invaluable tool for companies but also can work against them. Employees use blogs and social networking sites and engage in other Internet-related activities to vent frustrations to the public detriment of employers. Employees who post information may raise copyright or trademark infringement issues and even put their employers at risk.
Entities who have not yet adopted a social media policy need to realize that many of their employees are already using social media, possibly at work, and in ways that intersect with their professional life. Some companies have tried to rein in social media use. Others have accepted the inevitability of social media in the workplace and are guiding the interactions with carefully developed policies. Some entities will go further, encouraging certain employees to become Web 2.0 representatives of the company. It should always be clear to employees when they may identify themselves as representatives of the company. When participation is at the behest of the company, the employee must understand and learn to distinguish between communications that are the employee’s own and those that are official communications from the company. The employee then must clarify that distinction in public communications.
David Cifrino was cited in a September 2009 CFO Magazine story about companies that use the Twitter social networking site for communication. He urged the creation of effective policies that clearly state who has authority to speak on behalf of companies, particularly publicly held ones that are subject to Regulation FD’s requirements about disclosing material, non-public information. Mr. Cifrino suggested that, given the potential liability of disclosure problems, companies should only use Twitter if there is a compelling business reason for doing so.
Protect your organization from Fair Labor Standards Act claims and lawsuits from non-exempt employees by implementing wage and hour policies and practices that conform with federal and state wage and hour laws. Moreover, in this down economy, learn about what your organization can do to prevent non-exempt employees from working overtime.
The surging popularity of social networking sites such as Facebook, MySpace, Twitter and others creates a host of legal issues for employers. Many employers have already adopted policies governing social networking by employees on company computers, on company time. But what are the risks arising from an employee’s social networking activities after hours?
[I]n addition to the invasion of privacy and Stored Communications Act claims at issue in the Pietrylo case, employers should also be aware of other potential legal concerns that could arise in the context of social media in the workplace, including state “off-duty conduct” statutes, federal anti-discrimination laws, and trade secret laws.
[E]mployers should consider crafting internal policies to define the types of off-duty conduct that will not be tolerated – provided the employer is prepared to fairly and consistently enforce such policies. By having the right policies in place, and seeking counsel prior to taking the employment action, many employers can help protect themselves against liability for taking action against an employee based on off-duty conduct. Such foresight and planning is needed in the age of Facebook and other social networking sites when employers too often become aware of conduct unbecoming of their employees.
Organizations need to get on top of this trend now, rather than waiting for circumstances to force the issue. As with all new technologies, communications via Web 2.0 systems like social networking sites will be used by your organization, will be recognized by the courts, will be subject to regulation and will be sought in discovery. The best strategy for any organization is to proactively adapt to this evolution and invest in the proverbial “ounce of prevention.”
Whether to prevent employees from engaging in inappropriate activity or to use social media as part of a wider marketing strategy, the most important thing is to make the organization’s intentions and expectations clear, according to the article. Stephens said social media policies bleed into other issues as well, including personal use of practice-owned computers and intellectual property protections. Rules covering these aspects also should be updated to reference social networking. It’s probably a good idea to send notices to everyone on staff explaining the rule revisions, he said. How policies are enforced likely will reflect the established practice culture.
Stephens suggests that a first step is to “assess the company’s culture, because the company has to decide what its core values are,” and whether it wants to encourage employees’ use of social networking sites. Next, “understand that there is only a certain amount of control that a company has over its own endorsed social media applications, and especially away from the workplace,” he said. Then, assuming the company has one, “convert your existing policy to cover these social networking applications,” Stephens suggested. “Many companies have already addressed electronic communications, specifically e-mails, and likely have already addressed Internet use at work.”
In these challenging economic times, public companies should be applauded for their creative efforts to sell products and services through the social media. In undertaking such efforts, however, companies should consider two critical areas: Is it time to update our internal corporate policies? Do our policies take into account the potential uses of social media? Is it time to retrain our employees? Our employee training already covers appropriate inbound communication, but should we implement additional employee training regarding outbound digital communications?
A comprehensive set of disclosure policies will need to address these issues and a host of others, including issues that will arise in connection with securities offerings and the risk that employee or third-party communications could be deemed to have been made by or on behalf of the company. In the face of these challenges, companies should consider whether the time has come to adopt or update policies regarding the use of emerging Internet-enabled communications channels as part of their investor relations strategies.
In light of the potential risks and pitfalls associated with monitoring applicant or employee blogs and social networking sites, employers should initially consider whether the benefits of information derived from these sources are worth the potential liability, advises Perkins Coie labor and employment lawyers Vickie Wallen and Brian Flock.