Social Media and Technology in the Workplace: Top 5 New Year’s Resolutions for 2010

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

January 2010

It’s that time of year again—time to make (and hopefully keep) your New Year’s resolutions. New Year’s resolutions do not have to relate solely to dieting and exercise, however. Now is a great time for employers to think proactively about their goals and aspirations for the coming year. When thinking about New Year’s resolutions for the workplace, a hot topic and cause for concern is the growing use of social media in the workplace. In 2010 your organization should be developing and implementing workplace best practices regarding use of social media and other emerging technologies. Employers should start this process by asking: How will our organization manage the risks associated with the use of social media and at the same time gain the benefits that this media form provides?

Resolution No. 1: Revamp Your Company’s Electronic Use Policy.

Your company has probably had a policy addressing employee use of computers, email, and the Internet for years. With all the changes in workplace use of technology, however, it is important to periodically revisit your organization’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, LinkedIn and microblogs like Twitter. These sites present a host of issues that employers need to work through and about which employers must make decisions. Common questions include:

• Will you give employees access to these sites at work, or will they be blocked? That may seem like a simple question, but how you answer it will, in turn, present new questions.
• How can you block employee access when your organization has decided to actively use social media as a marketing and advertising tool?
• If you do not block access, how will you prevent employees from spending their entire workday updating their personal profiles, finding old friends, etc.?
• Does it even matter if you block access on company 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 when they do access them. Employees have the ability to post information about the company, about management, and about coworkers—while at work (if they can access social media sites) or at home or on the go, even during nonwork hours. The main questions here are: How will you control the content they publish in those situations? And to what extent can you control the content?

Although some employee-created content on the Internet may relate to (and embarrass) only the employee, other content may describe the employer, coworkers, or other business matters. This content may have a significant impact on employers, as it may create bad publicity for the employer, may expose company trade secrets or confidential information, or may otherwise expose the employer to liability for defamation, discrimination, invasion of privacy or confidentiality, 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.

Chances are an electronic use policy that is even a few years old will not be equipped to address any of the above listed concerns. Or, if it does, it may be so draconian that it is entirely impractical and unworkable and does not allow for those times when using social media is actually a good thing for the workplace. As a result, if you have not done this already, 2010 is a great time to revamp your electronic use policy to make it social media-ready.

While each company encounters different employee uses of the Internet and social media, a good electronic use policy should encompass the following message:

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

The bottom line? Make sure that employees know that their conduct and postings on social media sites may result in discipline.

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

Until recently, social media sites have largely been perceived solely as a distraction, something to interfere with employee productivity, and something to be prohibited altogether. Now, however, 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, many employers are venturing into the world of social media without much forethought into the disadvantages and even the legal risks inherent in employer use of social media. Employers may also be using social media inconsistently or haphazardly, which may expose them to legal risk.

Social media sites like Facebook or MySpace (as well as, of course, 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, 15 U.S.C. § 1681 et seq. (if you have hired a third-party “consumer reporting agency” to perform a Google or other background search on behalf of your company for employment purposes).

To avoid these legal risks, employers should proactively and preventatively 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?

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 as each company uses technology in a different manner. However, you must take the time to evaluate how your organization intends to use social media and under what circumstances. You then need to ensure that you are acting consistently with all employees. When in doubt, call your employment attorney. The state of the law relating to use of technology is developing and changing almost as quickly as the technology itself and you should take into consideration the potential risk associated with the use of technology.

Resolution 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. Likewise, 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. Chances are, however, that this time is not being accurately tracked. 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. By failing to track this time, however, employers are placing themselves at risk for claims for unpaid overtime. This is an area that is ripe for wage and hour litigation.

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 do 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?

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

Are you managing your company’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 company’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—by a former employee who is trying to sabotage the business or trying to unfairly compete with your company. Other times the disclosure may be inadvertent—by an employee who was simply careless and did not think about the ramifications of posting on her blog detailed information about that cool new project she was working on that day. In either situation, employers need to be thoughtful about how they protect confidential information. Here’s how:

• Make sure that your electronic use and/or social media policies permit you to conduct monitoring of internal and external email or Internet posts, or 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 company’s confidential information on any external forum.
• Remind current and departing employees that you will be conducting an audit of their computer use (departing employees) and monitoring computer use (current employees). If your employees know that you will be conducting this kind of search, they will be less likely to take information.
• When an employee is being terminated—whether as part of a layoff, or for poor performance or misconduct—be on alert. Unhappy employees may decide to take revenge.

Resolution No. 5: Train employees and managers.

Resolving to implement policies and procedures relating to use of social media is an important first step, but having policies in place is useless unless employers take the time to train managers and employees on the policies and on their expectations regarding use of social media. Take the time to do this and you will see positive results!

For more on this topic or if you need assistance with training, drafting, and implementing these policies, please contact one of our Fredrikson & Byron Employment & Labor Law attorneys.

Takeaway

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