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Thursday, August 27, 2009

Social Media Conflicts at Work

According to the number of seminar emails and fliers I'm receiving the new "hot topic" in employment law is how social media impacts the employee/employer relationship. I've begun to see this within our own walls. This truly is a new area where mistakes can be made and relationships can be damaged if everyone doesn't know and observe the appropriate social and legal boundaries.

Most of the problems created by Facebook, Twitter, MySpace and LinkIn accounts revolve around two issues: employee criticism of employer and supervisor and the unwelcome reading of personally posted on-line material by supervisors and co-workers. For the employee there are risks from posted materials meeting the legal definitions of libel, slander, breaches of confidentiality with the employer's private information, and conduct that damages the employer's brand or other protectable interests. For the employer, especially supervisors, the risk is invasion of privacy and arbitrary or capricious employment actions taken on the basis of private or non-work communications.

For reasons of space and brevity I won't go into legal details, but if you're interested in a typical case you can research Pietrylo v. Hillstone Restaurant Group for more information.

So what are the boundaries? Nobody is totally sure because the precedents from case law are still being decided. From my perspective here are some common sense guidelines to keep everyone out of trouble.

Employees
  1. Be gracious and kind in your comments. If what you say isn't negative or unfair you can skip everything else below.
  2. If you want to post private information for your friends and family only, make your social media pages private. You can't say on the one hand that this is your personal and private information and then post it publicly on the web.
  3. This isn't an absolute protection. If your page is private and you have 50 co-workers as followers the impact of a negative comment about your company or supervisor is the same as if you said it in the hallway in front of a group of 50.
  4. Don't divulge confidential information about your employer or anyone else.
  5. If you read information on someone else's private page, repeating it is the same as overhearing a hallway conversation or eaves-dropping on someones phone. Sometimes telling a supervisor what you read on someones social media page is justified (abuse, threats of suicide, illness, etc...) and that's up to each individual's ethics.
  6. If you read something on someones Facebook or Twitter that offends you, follow someone else. Its not a matter about which to complain to your supervisor or co-workers.

Employers

  1. If an employee's page is private, don't seek the information that's on it. You can get the password from a co-worker or log in on a PC where a saved cookie gets you in, but its the equivalent of looking through a keyhole.
  2. If you cruise your co-workers or employees' social media pages and you get offended, whose fault is that?
  3. Know what are the protectable interests of the company and never bring up anything from someones social media page unless it damages a protectable interest or violates an agreement. The person must have identified themselves on their page as being associated with the company and then engaging in conduct (discussions, posting pictures, etc...) that reflects negatively on the employer's brand.
  4. Know if any company information posted by the employee is available elsewhere in public forum. If so, move along. If not, you have a confidentiality issue that is actionable.

90% of the social media conflicts I've seen can be avoided by good taste, mutual respect, and the keeping of confidences. Just like in the off-line world!

2 comments:

Rick said...

Great post Jim. It's good advice on social media.

Anonymous said...

Love the blog Jim! Way back in 2004 I attended a whole Honda Employment law to help Suppliers Seminar thing on blogging, social networking, and litigation. We were all going...what is a blog? What is the attorney talking about? And, why do we care? HA! At that time there was a case against an American Airlines stewardess who posted some distasteful pictures to her My Space side. Although the weren't really really bad...AA thought they were bad...as they were in her AA uniform...and they fired her! Interesting case for our HR toolkit.
-Dana