Workplace Social Networking Nightmares

If you’re not on LinkedIn, Facebook or Twitter, you’re becoming unusual

these days. And if you haven’t thought about how you and your organization are

being portrayed on these outlets, you’re potentially putting both yourself and your

company in danger.

According to a new Deloitte LLP Ethics & Workplace survey,

http://www.deloitte.com/view/en_US/us/press/Press-Releases/pressrelease/

4185f6b085912210VgnVCM100000ba42f00aRCRD.htm

60 percent of

business executives believe that they have a right to know how employees portray

themselves and their organizations in online social networks, yet a mere 17 percent

of them said that they have programs in place to monitor and mitigate the possible

reputational risks related to the use of social networks. Less than a quarter have

formal policies on the use of social networks for employees but, ironically, nearly

half of employees responded that detailed guidelines wouldn’t change their

behavior online.

Employees disagreed that their employer had a right to know about their off

work, online behavior. Younger workers were especially vehement, with 63

percent of 18-34 year old respondents asserting that employers have no business

monitoring their online activities.

What’s the possible mischief with this disconnect? At least one-third of the

employees in the Deloitte survey said they never consider what their boss or

customers might think before posting material online, leaving your brand

vulnerable. A leak of confidential company information also looms as a risk. For

those companies who are using these outlets to promote their own brand, an even

larger issue exists.

Employees may also post harassing, damaging or defamatory information

about their co-workers or bosses. I conducted one recent workplace investigation

where an employee posted pictures of her new boss in a low cut blouse on

Facebook along with the comment “she’s a slut!” What can or should a company

do in these situations?

As far as the law is concerned, according to Barb Grandjean, a Denver

employment lawyer, “This is an evolving area and there is no clear guidance for

employers and little case law. Employers will be required to balance a number of

competing considerations when deciding how to handles these situations.

Employers should revisit their electronic communications policies because they

likely do not cover the newer types of communications.”

For material posted on a publicly accessible Internet page, employers would

seem to have the same right as anyone in the general public to access the posting,

and, generally can take action based on the posting’s content. However, one

danger area I have noted when advising managers on this issue is that if they

access a

restricted website or social networking site without proper authorization,

they face potentially significant exposure under the Stored Communications Act

and state privacy laws.

Robert Konop v. Hawaiian Airlines, Inc.

http://www.internetlibrary.com/cases/lib_case32.cfm

is one leading case on point.

Another problem is that in states like CO, CA and NY, which bar employers

for taking action based on legal off-duty conduct (such as smoking or political

protests), there is more of a concern. I think that even there, however, because

employees do owe their employers a duty of loyalty, violating the duty of loyalty

to the employer by bashing it online may be a legitimate ground for discipline.

What about criticizing or harassing comments about fellow employees or

supervisors? If it’s just general grousing, the employer probably can’t do anything

about it because of the lawful off duty conduct statute. But if company

information is being shared or significant harassing statements being made, the

employer probably could argue that they fit within the exception to the statues

because it creates a conflict of interest for the employer. Once you’re on notice of

the harassment, you have a duty to investigate and to stop it when and if it bleeds

back into the workplace.

Clearly, if the employees are doing this on company time using the

company’s equipment and servers, you can design your policies so that you have a

right to monitor their activity. I would also suggest creating policies that, even on

their own time, they can’t engage in conduct that would violate the workplace

policy against harassment, disclose confidential information or trade secrets, or

violate their duty of loyalty to their employers.

A related issue is giving a recommendation on LinkedIn. Here, I advise

managers that they should follow the company’s general policy on

recommendations. Many companies these days require managers to simply give

out name, rank and serial number, nothing more.

In summary, be safe rather than sorry while the courts are sorting out this

issue. Talk with your attorney and IT experts about monitoring activity, and then

revise your policies and train employees and managers based on their advice.

Copyright © 2009. No part of this material may be reproduced without written permission from Lynne Eisaguirre,

Workplaces That Work, 303-216-1020, Lynne@Workplacesthatwork.com,

www.workplacesthatwork.com