Employer Beware: The Downside of Social Media in the Workplace

I recently interviewed employment attorney C. John Holmquist about his recent posts advising employers on social media protocol.  (See prior post #1:An Early New Year’s Resolution–Create A Social Media Policy; #2: Social media and employers: a criminal state of mind?; and #3:Checking an employee’s social media activity? Proceed with caution in Oakland county.) 

John has represented private and public sector employers in all aspects of labor and employment law for over 35 years. He is a Fellow in the College of Labor and Employment Lawyers. He has been included in the Michigan Super Lawyers in the Employment and Labor practice area since 2006 and DBusiness Top Lawyers in Employment and Labor Law for 2010.

Read on to learn John’s responses to my questions about the legal implications of social media in the workplace:

Q1)      When did you first become aware of social media’s impact on employment law, and what were the triggering issues/events?

A:  The arrival of the internet and email into the work place was heralded as the beginning of what has now evolved into the social network phenomenon.  Employees could use their employer’s technology to access the internet much faster than with the early dial up services.  Email became a much easier and faster way to connect with friends. 

Q2)      What was standard protocol for employers in the early days, in terms of dealing with employee use of the internet and email during work hours?

A:  Initially, employers were trying to deal with the use of company equipment and technology by employees during work hours, and the impact this use had on the functioning of the computer system itself.  Employers wanted to lay out the ground rules for if and when an employee could use the internet .  The next issue became how to monitor the use and enforce any policy since employees felt that their right to privacy was not respected.  Employers were told to tell their employees that there was no expectation of privacy and that the employer could and would monitor employee use and content.

Q3)      What do you see as the trends emerging today, as it pertains to social media in the workplace?

A: The advent of smart phones means that employers cannot track the use of the internet or its content.  Employees can access the internet at any time.  Employers need to establish or to expand existing policies as to the use of this technology during work hours, as part of a comprehensive policy.

Q4)      What pitfalls do you see for the unwary employer from a liability standpoint?

A: Employers and their representatives need to be aware of the legal risks of unauthorized access to password protected sites.  Having an employee who has access to another employee’s password protected site, or using that employee’s password subjects the employer to liability.    Written policies need to be in place which inform employees what is and is not permitted, rather than  reacting to these matters on a case by case basis.

Q5)      What advice do you have for employers to avoid the pitfalls?

A:  Employers need to understand the culture of the work place and create a written policy which addresses:

  1. access to the internet;
  2. use of the employer’s technology;
  3. use of the employee’s smart phones at work;
  4. and content which should not be divulged via the internet or social networking sites.

Employers also need to identify legitimate company interests, such as business proprietary information, and explain what the policy is and why a policy is necessary to protect the company’s interests.  Employees need to know what the rules are and need to be given clear written examples of what is and is not allowed, as well as what the consequences are for violating the policies.

Q6)     What would you anticipate as being problematic in the future, with respect to social media issues in the workplace?

A:  I read news articles about Facebook “horror stories” involving employee terminations, on a weekly basis.  These stories have also attracted the attention of state lawmakers.  I expect this area to be addressed in the near future, even though there are already state and federal laws in effect.

Another problem involves privacy rights.  Employees assume they have certain privacy rights, which may not exist, especially in the private sector.  In order to avoid misunderstandings, employers need to put their social media policies in writing.  That way employees are more likely to understand and to cooperate with the policies.

For more information, visit John’s LinkedIn Profile or read his blog.

 Questions for employers and employees to ponder and share:

I’d love to read comments from employers and employees on this topic.  What concerns you about using social media in the workplace?  Do you have written protocols in place to address these issues?  If so, how are they working out for your company?

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Lori T. Williams is an attorney based in Birmingham, MI, licensed in 1989.  As owner of a legal referral business called Your Legal Resource, PLLC, Lori personally assists individuals and small businesses in need of legal advice or representation in Metro Detroit by connecting them with the right legal specialist to meet their needs. Click here for a pdf of legal referral services. 

Through group training and events, Lori also focuses on referral marketing strategies for attorneys and other professionals. For more information about Lori or Your Legal Resource, visit www.bestlegalresource.com.  For networking events, training programs, and workshop information, visit: www.bestlegalresource.com/events.


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