Time & Attendance
By Gene Connors
Feb. 24, 2010
With apologies to Shakespeare, who was quite the networker himself in Elizabethan times, to network or not to network is not the question. Social media is a fact of life for millions of people, so the real question is not whether we connect, but where and in what ways we should connect to benefit from online networking’s pluses and avoid its minuses. Because many, if not most, networkers are employees, the question is also how far employers can and should go to guide employees’ social networking activities to prevent or reduce employment-related problems.
Here are 10 social networking commandments for employers. If followed, they will enable employees to enjoy social media without employer static and interference:
1. Influence appropriate work-connected behavior and use by employees with a social media or networking policy. Privacy rights are gaining ground each day, particularly in employee-friendly states such as California and New Jersey. But rest easier, because employers have rights too. These include an employer’s ability to create and enforce reasonable policies to protect its employees, its property and its reputation from false or reckless actions by its employees. Reasonable and responsible employee use of social media starts with clear, work-connected policies, including a social media/networking policy, to frame acceptable and unacceptable e-behavior.
2. Use your social media policy to set employee boundaries. Every employer needs a simply worded social media policy to provide employees with practical guidelines to help prevent unthinking, harmful employee actions. Having no such policy is like having no curfew for teenagers. Few things are worse for employers or parents than hearing “You never told me that!” Tell your employees, nicely but firmly, what you expect from them.
3. Echo important employment considerations in your social media policy. Minimize accusations of being Big Brother. Assure employees that social networking can be wonderfully fulfilling. Like household appliances and tools that can cause death or serious harm, however, thoughtlessly using the Internet for social networking can cause serious harm to the company and our jobs. While socially networking, we must avoid:
• Illegal activity.
• Disclosing trade secrets or other confidential or sensitive information.
• “Watering down” patented or copyright-protected information.
• Harassing or otherwise being mean-spirited by spreading gossip—or even the truth—about others.
• Wasting our work time or that of others.
4. Consent for monitoring is crucial, but “sell” it to employees. Whether employers need to monitor should be a non-issue. “Playing ostrich” by failing to monitor invites a host of legal and public relations issues, because ignorance is not bliss and it’s certainly no legal defense. The only actual question is how an employer can monitor with the least legal exposure. The answer is obtaining employee consent to monitoring.
Obtaining signed or implied employee consent regarding the workplace use of social media is crucial to an employer’s ability to monitor employee use of social media and take action for unacceptable employee behavior. Monitoring employee use of social media without clear consent is like walking into a New York City bar with an unregistered handgun in the waistband of your sweatpants with the safety off. Things can happen, but nothing good.
Employees have options, as do employers. Among their options is to work for you or leave. They also have privacy rights that courts continue to recognize, refine and sometimes create. At work and beyond the workplace, however, employees can agree to and accept as reasonable the privacy standards that employers offer at the time of hire, or as a requirement for continued employment. Those most likely to agree to such standards—because they want employment—are job applicants. But when jobs are scarce, as they are now, existing employees can be equally “accepting.”
It’s not necessary for employees to consent in writing to privacy expectations. But written consent is easier to prove in case of a dispute or lawsuit. It’s also difficult, if not impossible, to deny. Obtaining written consent is easier from each applicant than all employees at one time.
Because obtaining signatures from a group is hard, implied consent for existing employees is the norm. It typically starts with an electronically and physically posted message to employees, announcing a change on a specific date for all employees. Employees who continue working after the effective date of the change have implied their consent. This form of consent works fine in most cases, unless, for instance, the change is forbidden in the work state. One example, from another employment-law arena, is a noncompete pledge that states such as California generally abhor.
Imagine the relative ease in defending your viewing of an employee’s Facebook page if you have this consent in hand:
If hired, I will comply with all Employer X policies, including, for example only, its non-disparagement policy and its social media policy. I encourage Employer X to monitor my compliance as it sees fit. I understand that monitoring can extend beyond Employer X-provided equipment and my at-work time to off-site social electronic sites such as MySpace, and to any Twitter or other social media account I maintain or visit. I agree, in advance, to provide Employer X with any needed password or other access to conduct employment-related monitoring.
To keep good and motivated employees, avoid force-feeding policies and coercing consent. That would only persuade more employable workers to defect to less draconian competitors. Note that even with consent, overbroad or intrusive monitoring will still spell trouble. To sell employees on a social media policy and obtain their consent:
• Provide examples of valuable, acceptable use of social media to encourage that kind of behavior.
• Alert employees to stories of how new Internet “friends” are not always who they say they are.
• Specify, with concrete examples, acceptable and unacceptable social networking.
• Minimize negative reactions by asking employees to reverse roles: “Imagine if an employee said this about you.”
• Specify easy-to-understand guidelines and require employees to meet them. Only then should you seek consent.
5. Always use the least intrusive search available. Once you have consent and before monitoring, decide how to monitor in the least intrusive way to seek needed information. In cases involving privacy issues, expect courts and juries to be offended and then punish employers that choose and use a more intrusive method over a less intrusive alternative.
6. Seek only necessary work-related information. An employer’s right to monitor and search extends only to information needed to protect its business and its people. Never seek other information.
7. Be yourself. Never pretend to be someone or something else to access and get information from a site. Violate this commandment, and you can brace for a lawsuit, and prepared to be called a predator—invoking the vision of a sexual predator to a jury—that is acting in violation of site-entry rules and federal and state electronic communication and other laws.
In 2009, for example, a federal court in New Jersey found that an employer, Hillstone Restaurant Group, had violated federal and New Jersey laws by accessing an invitation-only site by pretending to be an employee and using the password of an employee who had permission to be there. Read that decision here.
8. Know and obey applicable law. “Ignorantia juris non excusat” is Latin for, roughly, “Ignorance of the law does not excuse its violation.” It was smart advice in ancient Rome and it still applies. Laws that specifically or arguably apply to social media searches and monitoring include:
• The Federal Electronic Communications Privacy Act.
• The National Labor Relations Act.
• State statutes that outlaw adverse employment action for engaging in off-work activities that are not unlawful.
• Constitutional and court-created privacy and similar personal rights.
Keep abreast of the reach and depth of all possible laws that apply to monitoring and avoid inviting a lawsuit by stretching the envelope.
9. Act to protect. Discovery of dangerous or damaging information on a site demands immediate and effective action tailored to the particular facts. That typically means requesting that the site remove the offensive information. This is often done simply by learning and using the particular site’s terms-of-use policy to your advantage. This can result in not only persuading the site to remove the posting but also to block future messages from the poster. Disclosing confidential information, “trashing” your products or services and significant accusations of wrongful behavior by other employees are examples of circumstances that often trigger removal.
If that effort fails, however, depending upon your policy and employee consent, approach the offending employee, if that person can be identified, and persuade him or her to remove the posting by offering lesser discipline for cooperation.
It may become necessary, however, to seek court relief. One example is when the sender is anonymous and the site manager or Internet service provider is unwilling to divulge the poster’s identity. Another situation that might require court action is when the site refuses to remove the posting.
It is also important, but less time-sensitive, to investigate who is at fault and, if it was an employee, what employment action is appropriate.
10. Be a bit paranoid. There is a fine line between being sensitive and just a little paranoid. You should cross it often to remain diligent, aware and—it is hoped—safe and secure in protecting your business, your fine reputation, your employees and their morale.
Maintaining and enforcing an effective social media policy, monitoring sites that your employees frequent and enforcing your policy when necessary are musts for survival in an electronic arena where a thoughtless, reckless or vicious electronic rumor can doom a business.
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