Social Media: It’s Here To Stay

If your employees aren’t plugged in to social media sites on a regular basis at work, it’s likely because you have (a) a draconian firewall or (b) a workplace entirely free of computers. It’s also possible that (c) you’re in deep denial. Like it or not, social media is here to stay.

Here are some important issues to keep in mind, courtesy of the law firm of Epstein Becker & Green, PC.

Blogs are a particular concern

Employers need to be diligent about protecting their company’s interests from disclosure or infringement by employees who use social media sites or blogs. Blogging in particular poses the greatest potential risk for employers and presents the greatest need for employer control.

A blogger prepares entries and posts them on a webpage precisely so others — including strangers — can read them and even comment on or discuss them further. The blogger’s posts remain in cyberspace indefinitely, ready to be discovered by wandering eyes after someone has searched the Internet using keywords that locate the blog entry.

In a flash, the fleeting complaints of yesteryear transform into a record that may be accessed by a competitor or government regulator or read by a coworker or manager who was criticized or ridiculed.

Or, the blog could be viewed by a recently interviewed candidate who is deciding whether to accept a job offer, or by an executive of a company involved in negotiations to buy your company. In the end, you must thoughtfully and prudently respond to what your employees elect to do in cyberspace.

Employee monitoring: How far is too far?

Keeping your trade secrets secret

Employers must also seek to protect confidential and proprietary information vital to their business: business plans, new products or services, customer and client information, financial results (particularly for publicly traded companies and those involved in sale or merger negotiations), and trademarks and service marks.

The list of confidential and proprietary information varies by industry and employer, but the need to trust employees and ensure they are maintaining those confidences is common to all employers.

Consider your reputation
Employers also need to protect their, and their employees’, reputation from embarrassing or offensive blog posts or the projection of an image they don’t want to be associated with (e.g., white supremacy or sexual perversion).

Employee morale and discipline issues

Finally, employers still have an interest in maintaining employee morale and discipline despite the proliferation of employees’ use of social media sites and blogging. You must ensure that bloggers and social networkers don’t challenge the authority, competence, or personal qualities of managers and coworkers or engage in harassment or disparagement of coworkers.

How to monitor your employees, legally and effectively — webinar next week!

Potential problem areas

You can face potential liability from employee use of social media sites or blogging in a variety of ways:

• Slander, defamation, and libel. Your company could be held liable if an employee posts negative statements about another person or a competitor on a website or blog.
• Trade secrets and intellectual property infringement. The disclosure of certain trade secrets can destroy the “confidential” status of the information, and the disclosure of a third party’s confidential information could lead to an action for trade secret misappropriation or intellectual property infringement.
• Trade libel. Misstatements or misrepresentations about a competitor could lead to claims of trade libel.
• Securities fraud and gun-jumping. Publicly traded companies can face sanctions for securities fraud if material misrepresentations are posted. Any postings plugging the registered company could violate federal securities law.
• Employment actions. Employees may try to sue you for wrongful termination or discrimination if their employment is terminated because of postings that reference personal aspects of their life (e.g., marital status or sexual orientation).
• Harassment. Language that is harassing, discriminatory, threatening, or derogatory could prompt a lawsuit.

Tomorrow, we’ll give you some tips for adapting to the brave new digital world. We’ll also tell you about a new webinar — specifically for California employers — you won’t want to miss.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!