Social Media Isn’t Just For Teenagers

Kegler Brown E-mployment Alert

Social media has become the preferred method of personal communication, and it is on its way to becoming an integral part of doing business. Blogs, wikis, social networks, Facebook, YouTube, MySpace, LinkedIn, and now Twitter - how can anyone keep up?

Many companies have seized the opportunity to make social networks a part of their branding, sales, and customer development activities. For example, Facebook reports that it has more than 700,000 active accounts with businesses. McDonald’s has an interactive website for customer videos and sweepstakes. A number of companies respond to Twitter complaints and comments.

Individuals of all ages are way ahead of businesses in embracing social media. Regardless of where or when employees use social media networks, employers may find themselves facing liability for misuse. Although the legal landscape is being shaped as quickly as the technology emerges, some of the potential rules are:

  • (a) Harassment and Discrimination - If employees post discriminatory statements, sexual comments, or racial epithets which are directed at their supervisors, co-workers or customers, the company may face a discrimination or hostile work environment claim. Discriminatory comments or jokes posted on a supervisor’s page can become courtroom evidence in a discrimination suit.
  • (b) Confidentiality - Whether intended or not, employees may disclose confidential or proprietary information about the company or its products on blogs or other social media forms. Sometimes this can be done purposefully by a disgruntled former employee.
  • (c) Intellectual Property - Employee use of social media while at work may implicate the copyright or trademark rules and regulations.
  • (d) Defamation - It is easy to disseminate gossip and false statements about co-workers, supervisors or the company. Negative comments posted about a former colleague may result in liability.
  • (e) Hiring - Employers are tempted to research MySpace, Facebook, blogs, and other postings of applicants for employment. Discrimination claims supported by evidence of company investigation and knowledge of age, sex, etc., gathered through social media pictures and text, are difficult to defend. In addition, use of online credit or other background information may implicate the requirements of the Fair Credit Reporting Act.
  • (f) Illegal Activity - In some instances, such as child pornography, employers may have a duty to monitor and report illegal activity by employees.
  • (g) Inadvertent Endorsements - Recent regulations issued by the Federal Trade Commission restrict employees’ use of social media to talk about products or services offered by their employer. Any time an employee “endorses” the company’s products, they must disclose their employment relationship.
  • (h) Content Regulation - One of the most controversial subjects expected to be considered by the Obama-appointed National Labor Relations Board is whether employers can restrict union solicitation through company sponsored electronic sites.
  • (i) Productivity - While not necessarily a liability risk, time spent posting during work hours detracts from productivity. Facebook reports the average user spends nearly an hour per day on the site.

In today’s world, employers at the very least must have a social-media policy that addresses the way employees talk about the company, as well as the company’s expectations for acceptable online activities.