Articles

As published in the July 27, 2009 Connecticut Law Tribune

America is using social media (e.g. Facebook, MySpace, Twitter, etc.) to publish everything from the profound to the mundane.  For employers, this leads to the tremendous potential for employees to enhance or harm the company’s reputation through their online activities.  Employers doing business in today’s world of Web 2.0 must take control with clear policies prohibiting employee blogs, tweets, or status updates about such things as a new product being developed, a coworker’s obnoxious habits, or the supervisor’s new girlfriend, while encouraging everyone to use Web 2.0 to advance the company’s image.  Here are some guidelines for this balancing act. 

Computer and Internet Use Policies

Employers with computers need a computer use policy.  For openers, confidential passwords should be mandated.  Also, due to the threat of viruses, spyware and other malware, no one should be permitted to download or install any software unless approved by the employer.  This should also help minimize the risk of liability for software piracy. 

If an employer allows personal use of company computers – which is extremely common – limitations are needed in terms of time spent on personal use and what kind of personal use is allowed.  For example, studies show computer games account for a staggering amount of wasted work time.  Such use should clearly be prohibited.  It is also crucial to remind all users that there is nothing on the computer that is kept private from the Company or possibly co-workers.  A nice way to say this without sounding like “big brother” is: “because all computer data (including internet activity) may be accessible to all users and maintenance technicians, employees should not input or access any personal data which they would want to keep private.”  Further, in Connecticut, for employers to electronically monitor computer use, they must post a written notice (in a conspicuous place) of such monitoring.  An effective way to do this is to post the notice on a computer log-in screen that employees see every time they log into a computer.

An additional consideration for employers in Connecticut, and several other states, is compliance with laws relating to the confidentiality of social security numbers and other personal information.  In Connecticut, employers must have a written policy describing procedures for safeguarding such data, including how data stored on computers is protected.

Internet Publication Policy

As Domino’s Pizza recently learned, once information gets onto the Internet, it can be impossible to remove.  Web postings that disclose confidential information or put the company, its employees or customers in a bad light can be devastating.  In the case of Domino’s, it was a YouTube video, viewed over a million times, in which an employee performs disgusting acts with sandwiches before allegedly delivering them to customers.  On the other hand, imagine the profit gained through a good website, an informative blog or Twitter feed.  This is why employers need a good Internet publication policy.  Such a policy should cover everything from prohibiting the disclosure of confidential or defamatory information to the promotion of the company through thoughtful use of social media.  Here are a few examples:

Confidential Information

While this subject should be covered in an employee handbook, it is important to remind employees that updating their Facebook status with information pertaining to confidential work projects could cost the company a client and the employee his/her job.  Also, employers should define what “confidential” means to their business.

Defamation

Even on a password protected site such as Facebook, posting defamatory statements about anyone could lead to legal liability for the company as well as the employee, and such posting should be prohibited. 

Other Harmful Postings

Employers are not limited to prohibiting only defamatory postings, but are generally free to prohibit, for example, any conduct which places the company, its customers or employees in a bad light.  For example, a few months ago, news reports described the firing by the Philadelphia Eagles of employee Dan Leone for making the following Facebook posting: “Dan is [expletive] devastated about Dawkins signing with Denver.  Dam Eagles R Retarted” [sic].  

Images that could harm the company could also be prohibited (e.g. pictures of employees in company uniform, passed out and surrounded by empty beer bottles). 

Keep in mind, however, many states have “off-duty” laws that protect employees from being disciplined or discharged for engaging in legal off-duty conduct.  In Connecticut, for example, employers generally may not punish employees for smoking on their own time and off company property.  In New York, with few exceptions, employers generally may not punish employees for their legal use of “consumable products” such as alcohol.  Thus, employers have to be careful to comply with such laws when drafting and enforcing an Internet publication policy.

Conflicts of Interest

In addition to obvious conflicts, such as selling a competing product on the Internet, employers may generally prohibit employees from making statements adverse to the employer (e.g. a snack food company telling employees not to blog about how snack foods contribute to childhood obesity).  However, employers have to watch out for state laws like Conn. Gen. Stat. 31-51q, which generally prohibits employers from disciplining or discharging employees for exercising certain constitutional rights such as free speech.  There are exceptions to this statute, and a carefully drafted Internet publication policy can protect employers while minimizing the risk of liability.

Marketing Opportunities

In addition to controlling potentially harmful Internet postings, an Internet publication policy should promote smart use of the Internet to enhance the company’s reputation and attract new business.  For example, social media can allow employees to increase business by reaching out to family, friends, former classmates, and even strangers who share common interests.  Employers can take advantage of such opportunities by offering guidance on the best social networking sites to join, how to design an effective profile, and when and how to request permission to use company logos.  While not every company may wish to have a full blown marketing plan including blogs, social networking profiles, and avatars (as an aside, IBM actually has guidelines on employee behavior in 3-D virtual worlds), many companies would benefit from helping Internet-savvy employees make smart decisions that may lead more business.

Conclusion

Employers applying obsolete policies to cutting edge technology are putting leaded gas into a hybrid car.  As the Internet continues to evolve, new laws are passed, and younger generations steeped in the Internet enter the workforce, employers simply must update their workplace policies.  By adopting Internet publication and computer use policies, employers can reap many benefits and avoid many pitfalls of Web 2.0.