As employee communication on social networks increases, employers should put together guidelines to avoid litigation hot spots
Online and off, social media are creating conflicts between employers and employees that sometimes wind up in court. The complex issues involved touch on privacy rights, civil rights, and at times even criminal conduct. Attorney Anthony Haller, chair of the employment, benefits, and labor practice group at the law firm Blank Rome in Philadelphia, says small businesses should establish commonsense social media policies before disputes arise. He spoke recently to Smart Answers columnist Karen E. Klein; edited excerpts of their conversation follow. Karen E. Klein: Technology use is evolving so quickly that it must be difficult for the courts to keep up. What legal principles are settled at this point? Anthony Haller: It is fairly well-established that, provided a company has the right policies in place, communications through a company network are the property of the company, and there is no expectation of privacy for the employee. There are some exceptions, particularly if an employee is using a private e-mail address to contact a lawyer in an employment dispute, but generally a company has the right to read, review, and use the information on its own system. I imagine the boundaries blur when it comes to employees' social networking sites or personal blogs? In those, there may be a much stronger privacy interest. The issue often turns on whether an individual has got privacy settings in place—say, on their Facebook page—or whether the person doesn't have the right privacy settings. If the communication is open to the general public or to a large group of people, no matter what the person believes, they've probably lost the right of privacy. What problems arise around these issues? A lot of small employers think that if they hear about something inappropriate an employee said online, they can go intercept that information. But if the information is private, the employer can get sued civilly and sometimes there can even be criminal implications. A series of federal statutes passed in the late '60s under the Electronic Communications Privacy Act are being used today to trip people up. When does an employer need to respond to an employee's use of social media? The most common situation is the employer finds out that an employee is making critical statements on a social network or on a blog that may affect individuals within the company or the reputation of the company. Another scenario that happens frequently is when an employee says they're sick, or they have a family emergency, and then some pictures are posted of them at the beach or on a ski vacation. The question is, can the business owner take disciplinary action against the employee for something that's done on the employee's own time? What's the answer? Well, the employer has to get proof of the offense. If the employer can get that proof in a way that doesn't violate the employee's privacy, they can discipline and maybe even discharge that employee. The temptation is to go into the employee's personal site and see the evidence firsthand. That's fine if the site is open to the public. But if the evidence is on a password-protected site and the employer asks another employee—a friend maybe—to log in and turn over the photos or the text, that can be a problem. Does the reverse scenario also apply, where an employer can get into trouble for posting something negative about employees? Yes, it works both ways. And there was another case, a civil-rights case in the Eastern District of Pennsylvania, where a group of police officers had a blog site they used to communicate about things within the department. The allegation was made that the website turned into a forum for highly charged, offensive racist comments about some of the people within the department. And the employer was faulted for knowing this was going on but failing to take any action. Isn't that a contradiction? Employers aren't supposed to snoop on employees, but if they're not monitoring certain things closely they can also get in trouble. It's a very interesting collision of different principles. The Supreme Court recently decided not to tread in this water, recognizing the flux and changing nature of the situation. So I think it's something we're going to be struggling with for quite a while. How can small businesses handle this confusing area? They need to implement policies that help employees with the right etiquette. Effective employee guidelines say things like: Don't use offensive language, don't post something obscene or embarrassing, exercise good judgment, and if you're talking for yourself—not the company—make sure you're clear about whose views you're expressing. You certainly want to make clear that employees should not take photos of people at your workplace and post them without permission. And they should be told they cannot reveal things like the company's investment strategy or future plans. Are there templates they can access to get started? The Society for Human Resources Management should have a model policy you can look at, though you may have to sign up as a member to access it.