Can Productive Employees and Social Media Coexist?

MICHAEL F FLEMING

Shareholder

Larkin Hoffman Daly & Lindgren Ltd.

mfleming@larkinhoffman.com

www.lhdl.com

Topic: Legal

Look into any office cubicle, lunchroom, or courtyard, and an employer is likely to see an employee engaging in an act of “virtual” social interaction. The “Social Media” revolution is in full swing, and the workplace is not immune. “Social media” is an umbrella term which describes any number of web-based tools such as LinkedIn, Facebook, Flickr, and Twitter. While each is unique, all are designed to use the Internet for social interaction. Combine their incredible popularity with ubiquitous access to the Internet, and employers will inevitably face concerns about whether and how to control the use of social media by their employees.

Use of social media on the job is not necessarily unwanted by an employer - at least when used to further the ultimate purposes of the business. But, like e-mail, and before that the telephone, businesses often struggle to define a policy on the personal use of tools owned by the business, and each will likely find its own balance and tolerance. Concerns about employee productivity and potential harm to business computer systems compete against potential business benefits from new communication channels as well as considerations for employee morale.

Further complicating issues: Is the business required to maintain records of employee business communications (such as in the securities industry)? Will monitoring communications add to the already burgeoning burden of a company’s electronically stored information and its relationship to litigation discovery? Even more important than determining the right policy will be publicizing the policy within the organization. A recent study issued by The Travelers Companies, Inc. suggests that only about one-third of the country’s employees are aware of social media policies in their own workplaces.

Off-the-job use of social media by employees is also a concern. While many think it goes without saying that private business information should not be disclosed to outsiders, that same Travelers study suggests that nearly one-third of all employees believe posting information about their employer on social media is acceptable so long as the information is true. Some employees are not using good judgment in speaking about their jobs in social media, such as using social media to vent frustrations about their jobs. Just as an employer can enforce a policy about non-disclosure of company information on or off the job in other contexts, employers should make clear that the same rules continue to apply in social media.

However, in all of the above policy setting exercises, employers must be wary of stepping over privacy lines that may protect employees. Recent court decisions suggest that over-aggressive use of technology tools to monitor the content of an employee’s personal communications may violate the employee’s privacy rights. This is a rapidly developing area of law, and employers should work carefully with legal counsel to discuss the enforceability, legality, and wisdom of new social media policies and monitoring techniques.

In all, the influx of social media into the employee/employer relationship is something employers must pay attention to. However, like most disruptions to workplace productivity, social media is unlikely to be an insurmountable problem so long as employers address it head on before it gets out of control.

Contributing author for this article is Molly T. Eichen, Associate, Larkin Hoffman Daly & Lindgren Ltd

2010-03-31 10:01:43 -0500