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Social Media - An Employment NightmareSteven S. Glickman

The social media explosion has changed the way individuals communicate. This explosion has raised concerns for employers as to how control the use of social media by their employees and to what extent they can control its usage. It is critical for employers to establish a social media policy to put employees on notice as to what the employer considers appropriate or inappropriate usage of social media. It is imperative for employers to create a social media policy as a buffer to liability.

The first issue is use of social media when an employee is off-duty. For the most part, employees may maintain personal websites on their own time, using their own facilities. The policy should recognize that while social media activities are personal endeavors and employees may use them to express their thoughts or promote their ideas, they should not violate the employer’s rules or policies.

If the employer has determined that certain material should be prohibited on social media, the employees should be put on notice of same. Employees should recognize that they are accountable for their actions and statements that have an impact on others. The policy should inform employees that they must not make comments or otherwise communicate about coworkers, supervisors, or any other third party with whom they interact in the course of the work day in a manner that violates the employer’s personnel policies or that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory.

The issue of possible disciplinary action must be addressed as well. Employees must be informed that the posting of words, phrases, photographs, images or any kind of information on a personal web site may be grounds for the imposition of disciplinary action if the posting adversely reflects on the employee’s fitness for duty or constitutes a violation of the employer’s personnel policies.

The matter of disclaimers is also important. Employees should know that if they choose to identify themselves as an employee of the employer, they may be viewed as acting on behalf of the employer. As such, the policy should specify that no employee shall knowingly represent themselves as a spokesperson of the employer or make any post that negatively reflects upon the employer or expresses views that are detrimental to the employer.

Finally, the issue of confidentiality needs to be addressed. Employees must not be permitted to reveal or publicize confidential information. Employees must be prohibited from posting any internal work documents to social media sites.

In summary, the social media policy should stress the following: (1) violations of the employer’s policies on the use of social media will subject the employee to discipline, up to and including immediate termination, and (2) nothing in the employer’s policies is designed to interfere with, restrain or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Employees shall have the right to engage in or refrain from such activities.

In this day and age, without a social media policy, an employer will have difficulty controlling inappropriate usage of social media by its employees, and may leave itself open to potential liability from such inappropriate usage of social media by its employees, which could be attributable to the employer.