Social media policy best practices: Electronic monitoring

How do you craft a social media policy and internet use policy that helps to maintain your business image and reputation, your right to duty of loyalty, and your right to privacy without infringing upon your employees’ rights to privacy and freedom of expression? How specific do you need to be in your employee handbooks regarding these topics? How can you monitor employee use of the internet and social media in a responsible way?

Legal exposures continue to grow due to the widespread use of social media in the workplace, making the creation of social media policies even more important. In 2005, 16 percent of 18-29 year olds used social media. By 2010, it increased to 89 percent. Overall, 66 percent of online adults are connected to one or more social media platforms. How do you monitor this use to ensure it doesn’t negatively impact your business, without infringing upon employee rights in the process? Beyond creating social media policies, where do you draw the line on monitoring personal internet and email use in general?

Social Media Policy and Electronic Monitoring: Best Practices

How can employers protect themselves when monitoring internet and computer usage?

“The best advice that I believe we can give employers in this situation is to destroy any expectation of privacy when an employee uses employer equipment, employer websites, and employer devices. The way to destroy the expectation of privacy is for the employer to put the employee on notice that the employer will be monitoring its website, its email, [and] its devices.” Steven Semler explained during a recent BLR webinar. He continued to outline additional best practices for creating social media policies and, specifically, electronic monitoring policies:

• “Adopt and consistently enforce a comprehensive e-mail, voicemail and internet policy.” Semler advised. The policy should establish guidelines limiting computer usage to business-related matters, procedures for electronic monitoring communications, and e-mail retention guidelines.
• Notify employees of this monitoring so that there is no expectation of privacy in messages of any kind sent or received utilizing company systems, cell phones/smart phones, pagers or other messaging technology. Explain that all equipment, technology, and software are for the benefit of the employer only. Use splash screens as reminders.
• Make sure the policy covers all of the employer’s technology, but do so in general terms. Define technology in terms of its informational function, not in terms of current hardware and software. In other words, do not attempt to draft the policy to the specific technology, given the nature of constant technology updates and developments.
• Ensure the policy precludes oral modifications to its terms (it is commonly the practice with at-will disclaimers that state they cannot be modified by supervisors’ oral statements). When the policy is in writing, make all employees sign acknowledgement and understanding of the policy. That said, also remember that courts will go behind the policy to examine the “operational realities” of monitoring to determine whether the review of electronic communications is appropriate, so consistent application and enforcement is critical.
• Have counsel check cases and federal and state laws for any applicable electronic monitoring statutes that may have changed—this is an area in flux as employers race to stay up with changes in technology.

This information came from the CER/BLR webinar, “Social Media at Work: How to Legally Monitor Employee Facebook, Smartphone, and Blog Activity.” To register for a future webinar, visit visit CER webinars

Attorney Steven R. Semler is Of Counsel with FortneyScott and has been representing management in labor and employment law for over 35 years. He has significant experience in counseling employers facing union organizing efforts and in successfully defending employers against a wide range of EEO administrative charges and litigation claims.

Attorney Jacqueline R. Scott (co-presenter during the webinar) is a co-founder of FortneyScott, where her diverse practice focuses on business, international, and workplace matters. She advises clients on workplace investigations, worker classification issues, executive compensation, compliance with the wage and hour requirements of the Fair Labor Standards Act, DOL Opinion Letters, and federal contractors’ nondiscrimination and affirmative action obligations.