The Digital Divide: Legal Risks Posed by the Use of Social Media in the Workplace and How to Navigate these Tricky Waters.

By Lisa Chapman, Esq.

The proliferation of social media as a medium for communication poses significant risks for employers. Some of those risks include:

  • Misuse of your confidential information. Employees with access to your confidential information, including your customer list and intellectual property, are in a position to misuse such information. The risk of data leakage or misuse is significant in the digital age. Once published, the “confidential” nature of such information for purposes of trade secret rights and for obtaining certain future intellectual property rights is compromised.
  • Posting of disparaging or defamatory comments. Employees can intentionally or unintentionally post comments which cause harm to their employer’s reputation. Twitter, blogs and other sites give disgruntled employees an easy opportunity to cause serious damage.
  • Posting of discriminatory or other illegal comments. Employees are in a position to make discriminatory comments about co-workers on a company intranet, blogs and other social media postings, and in email communications. A seemingly innocuous email comment or blog posting can expose a company to substantial liability and pose a litigation risk.
  • Use of social media to investigate employee qualifications and conduct background checks. Using Facebook or similar sites to “check” employee qualifications can expose your company to claims of age or other types of discrimination.
  • Overambitious monitoring of employee email can expose an employer to privacy claims. Employers must strike a balance between honoring the legitimate privacy rights of their employees and their own legitimate need to investigate and monitor employee communications.

Faced with these risks, there are several things that a company can do to proactively protect itself against intentional or unintentional misuse of social media, including:

  • Consider instituting a social media policy. At a minimum, companies should have a baseline policy that sets out what is, and what is not, acceptable conduct for social media communications regarding the company or communicated through company channels or on company time. Such policies must be carefully constructed to comply with legal requirements.
  • Execute nondisclosure agreements. Have all employees sign nondisclosure agreements, and maintain a company handbook that contains a strict policy relating to the use and disclosure of confidential information.
  • Monitor your employees’ public use of social media, as allowed under California and federal law. Companies must refrain from “stalking” their employees’ personal social media entries, however they should be vigilant about monitoring blogs, industry related websites and other social media mediums such as Twitter where harmful comments could be made. Any discovery of potentially illegal or harmful entries should be investigated, and your legal options should be carefully considered before taking any action upon learning about such entries.
  • Strictly enforce your policies aimed at eradicating discrimination based on age, gender, sex, etc. Discipline employees for all infractions, regardless of how minor. Document such infractions in employee files, and punish employees who violate your anti-discrimination policies. Require that all offenders attend sexual harassment training, regardless of whether it is mandatory under California law.
  • Implement a privacy policy. Maintain a policy that informs employees that they should not expect any of their email communications to be private. This policy must be in writing. Do not use passwords or other related confidential information to access an employee’s private webpages or private email accounts.
  • Carefully limit how much you review the social media sites of job applicants. If possible, refrain from such review as it can expose your company as an employer to future liability.
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Roger Royse

Roger Royse, the founder of the Royse Law Firm, works with companies ranging from newly formed tech startups to publicly traded multinationals in a variety of industries. Roger regularly advises on complex tax structuring, high stakes business negotiations and large international financial transactions. Practicing business and tax law since 1984, Roger’s background includes work with prominent San Francisco Bay area law firms, as well as Milbank, Tweed, Hadley and McCloy in New York City.
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