Three Key Things Employers and Employees Should Know about Social Media

No company today can turn a blind eye to the social media explosion. Facebook alone claims more than 500 million active users worldwide, while the more business-oriented LinkedIn has more than 90 million members in 200-plus countries and territories. With this kind of reach, the social media phenomenon is clearly here to stay. Amid this new world order, there are three key things that employers and their employees should keep in mind.

1: Think Twice before "Friending" Your Boss or Subordinates on Facebook

A recent situation involving the Honorable Susan Criss, a circuit court judge in Galveston, Texas, provides a cautionary tale of what can happen when you start "friending" the wrong people on Facebook. An attorney who accepted a "friend" request from Judge Criss subsequently filed a motion to continue a trial due to her father's death. Judge Criss granted the attorney's motion but watched her Facebook activity that week. Rather than quietly grieve her loss, the attorney posted comments and uploaded photos that depicted her partying throughout the week. When a colleague sought a second continuance at the attorney's request, Judge Criss showed him the Facebook activity and ultimately denied the motion. The attorney was subsequently reprimanded.

2: Who Wants Employees Who Tweet Their Personal Gripes about the Company?

In November 2010, the National Labor Relations Board (NLRB) brought a complaint against American Medical Response (AMR) for allegedly violating the National Labor Relations Act (NLRA). The NLRB claimed that AMR fired an employee who used Facebook to allegedly engage in "concerted activity."

AMR denied that the discharged employee's Facebook posts had anything to do with collective action relating to the terms and conditions of employment. AMR maintained that the fired employee violated its social media policy by using profanity and disparaging her supervisor on Facebook. For example, she posted that her supervisor was a "scumbag" and a "17," the company's jargon for a psychiatric patient.

Although the case settled in early 2011, there are lessons to be learned for both employers and employees.

Employers: Employers generally understand that the NLRA protects the rights of employees to unionize. However, many do not know that the NLRA also protects the rights of employees to engage in "concerted activities for the purpose of...other mutual aid or protection," even when they are not union members. While we wait for courts to weigh in on exactly what is protected concerted activity in the social media context, companies should have counsel draft or review their social media policies to ensure they do not overreach and prohibit or chill protected concerted activity.

Employees: Employees should realize that few companies want to hire or retain individuals who exhibit poor judgment by using social media to publicly gripe about their employers. Even if you use the most stringent privacy settings on your Facebook profile, it is unlikely that all of your "friends" will keep your comments a secret. Furthermore, common sense dictates that many of them have little or no privacy protections of their own, which means the general public may be able to read at least some of what you post. While expressing your anger publicly may feel good in the heat of the moment, smart employees should think twice before posting or tweeting. Otherwise, you may run the risk of a current or prospective employer viewing you in the same camp as Charlie Sheen and Courtney Love.

3: You Need a Social Media Policy

Employers: If your company does not yet have a social media policy, it's time to implement one. The purpose?

1. To identify who may initiate social media activities on behalf of your company. For example, can any employee post, blog or tweet on the company's behalf? Does the company want to exert tighter control by designating a committee or department to oversee the way it uses social media? 
    
2. To discipline or discharge employees when they violate the company's social media policy. 
    
3. To avoid ex-employee lawsuits like Pietrylo v. Hillstone Restaurant Group. 
    
4. To set forth the company's rules on using social media at work or at home (if an employee's personal posts or tweets are work-related). For example, do you want your policy to do one or more of the following:
   • Encourage employee use of social media outlets to circulate promotions or quickly respond to customer complaints and problems? Or, at the other extreme, ban the use of social media at work or during working hours? 
      
   • Prohibit employees from commenting publicly on the company's products, clients or competitors? Or, if commenting is allowed, require employees to get advance approval or limit their comments to an internal intranet for training or product feedback? 
      
   • Direct employees to refrain from creating a blog or online group related to their jobs? If allowed, require a disclaimer that the employees' opinions do not reflect those of the company? 
      
   • Prohibit defamatory or disparaging posts? (Think Charlie Sheen or Courtney Love, who recently settled a defamation claim to the tune of $430,000 for her disparaging tweets about fashion designer Dawn Simorangkir).  
      
   • Prohibit retaliation in response to negative posts about the company, co-workers or themselves? 
      
   • Direct employees not to use the company's logo or marks in a social media context?

Employees: Read your company's social media policy so that you know your employer's stance on using social media during working hours, as well as what uses require prior approval. Understand how you can best use social media to support your employer's business objectives, thus potentially helping yourself advance within the company. Understand that if you access personal e-mail or social networking sites on company equipment, you have implicitly authorized your employer to access that content as part of its normal systems monitoring. In short, know what you can and cannot do under the policy, along with the consequences of a violation.