Social Media and Technology in the Workplace

By: TERESA M. THOMPSON & NORAH E. OLSON BLUVSHTEIN

March 2010

A hot topic and cause for concern is the growing use of social media in the workplace. How will your bank manage the risks associated with the use of social media and at the same time gain the benefits that this media form provides?

No. 1: Revamp Your Bank’s Electronic Use Policy.

Revisit your bank’s electronic use policy to make sure that it is up to date and crafted to reflect the current state of technology use.

The latest wave of technology to impact the workplace involves use of social media Web sites, such as Facebook, MySpace, craigslist, and LinkedIn, and microblogs like Twitter. These sites present a host of issues that employers need to work through. Common questions include:

• Will you give employees access to these sites at work, or will they be blocked?
• How can you block employee access if your bank has decided to use social media as a marketing and advertising tool?
• Does it even matter if you block access on bank computers when your employees have applications (commonly called apps) on their iPhones and BlackBerries that allow them to access the sites?

Another area for decision-making relates to controlling what employees post on social media sites. Employees have the ability to post information about the bank, about management, and about coworkers. How, and to what extent, can you control the content they publish?

Content that describes the employer, coworkers, or other business matters may have a significant negative impact on employers if it creates bad publicity for the employer, exposes company trade secrets or confidential information, or otherwise exposes the employer to liability for defamation, discrimination, invasion of privacy, or other claims. At the same time, some content posted by employees may be considered concerted activity and thus may be protected under the National Labor Relations Act.

A good electronic use policy should include the following communication to employees:

• You may not use any bank trademark or logo in your postings on the Internet unless you have received prior approval from the bank.
• With regard to a personal blog, you should make it clear that any statements or opinions expressed on the blog that relate to the business of the bank, its employees, or its products are your own and are not in any way approved by or affiliated with the bank.
• If you post comments that relate to the business of the bank on any Internet sites, you must identify yourself as an employee of the bank, and also state that any statement or opinion is your own and is not in any way approved by or affiliated with the bank.
• If you post comments that relate to the business of the bank, its employees, or its products on any Internet site and those comments are malicious, disparaging, or defamatory, you may be subject to discipline up to and including unpaid suspension and/or termination.
• If you post comments that relate to the business of the bank on any Internet site, you are prohibited from disclosing any confidential information relating to the bank, its customers, or its employees on that Internet site.

No. 2: Decide on a policy regarding Management’s use of social media.

Businesses increasingly embrace social media as a marketing and recruiting tool and even as a vehicle for developing and maintaining internal workplace culture. While social media can hold great advantages and benefits for employers, think about the disadvantages and even the legal risks inherent in employer use of social media.  

Social media sites like Facebook or MySpace (as well as Google and other search engines) hold a wealth of information that employers can use—to hire, to fire, and for much in between. Although such searches may yield useful, relevant, and lawful information regarding a job applicant, they may also yield information that creates risks for prospective employers, such as information regarding a person’s race, ethnicity, sexual orientation, religion, age, union affiliation, or other protected-class information. Even if an applicant’s Facebook or MySpace page contains information that provides a legitimate basis for an employer’s adverse employment decision, the exposure to information regarding protected-class status can create problems for an otherwise straightforward hiring decision.

There are other possible pitfalls, including but not limited to: (1) violation of social networking Web sites’ Terms of Use policies; (2) obtaining information that is false (remember, not everything on the Internet is true!); and (3) running afoul of the Fair Credit Reporting Act if you have hired a third-party “consumer reporting agency” to perform a Google or other background search on behalf of your bank for employment purposes.

To avoid these legal risks, employers should implement ground rules for managers and other decision-makers who will be using social media in hiring, firing, or disciplining. First, decide on a policy for using (or not using) social media sites or Internet search engines to screen applicants for employment.

• Which sites will you use, and which sites will you not use?
• Under what circumstances will you use and not use them?
• When in the hiring process will you use them (if at all)?

Second, think about the circumstances under which you will and will not use social media to investigate employee misconduct.

• What will you do if an employee’s coworker prints off a post by the employee on the coworker’s Facebook page and that post shows unbecoming behavior or inappropriate remarks about a supervisor?
• What will you do if you discover that an employee is faking a workers’ compensation-covered injury?
• What rules will you impose for whether supervisors should “friend” subordinates?
• Does your organization have a “Facebook” culture? If so, how will you manage the interaction between supervisors and employees in that forum?

 There are no easy answers to these questions. However, you must take the time to evaluate how your organization intends to use social media and under what circumstances. Then you need to ensure that you are acting consistently with all employees.

No. 3: Start tracking nonexempt employees’ “BlackBerry time.”

“BlackBerry time” is work time. This means that checking email at night or before work in the morning is work time. Having a conference call on your cell phone on the way into work is work time. For nonexempt employees, this work time needs to be recorded for purposes of calculating overtime. It is difficult to track because it occurs outside the workplace and it often occurs in small, discrete intervals of time—a few minutes here, a few minutes there.

To avoid this situation, review your internal policies and practices regarding use of personal digital assistants (PDAs) by nonexempt employees, and consider the following:

• For nonexempt employees who use PDAs, instruct them to report any work time spent using PDAs; or
• Consider placing limitations on when PDAs can be used after hours.
• Evaluate requests for time off or for leaves of absence due to medical conditions. If your employee takes protected time off, are they still performing work from home? Are you paying them to do that work?

No. 4: Prevent your company’s confidential information from leaking onto the Internet.

Are you managing your bank’s online image? Do you know what other companies are saying about you online? Do you know what your employees and former employees are saying about your organization? Do you know whether your employees are revealing your bank’s confidential information on the Internet? Have you run a search lately on Facebook, MySpace, or Twitter to find out?

If you do not know the answers to these questions, now is the time to find out. Sometimes the leaking of confidential information is purposeful; other times the disclosure may be simply careless. In either situation, employers need to be thoughtful about how to protect confidential information.

• Make sure that your electronic use and/or social media policies permit you to conduct monitoring of internal and external email or Internet posts and Internet usage.
• Remind employees that they have no reasonable expectation of privacy in their business communications or business technology use.
• Remind all employees (including departing employees) in writing to keep trade secrets and proprietary/confidential information confidential, and not to use or post the bank’s confidential information on any external forum.
• Remind current and departing employees that you will be monitoring their computer use.
• When an employee is being terminated—whether as part of a layoff, or for poor performance or misconduct—be on alert.

No. 5: Train employees and managers.

Take the time to train managers and employees on policies relating to use of social media.

Takeaway

In 2010, make it a priority to ensure that your bank has policies, procedures, and training in place to address employee and management use of technology in the workplace.