A employee “blogs” about his boss’s obnoxious behavior. Can his employer discipline him? What if an employee posts on her personal Facebook page information about a yet-to-be-released product? Can an employer be liable if an employee “tweets” harassing or derogatory statements about a co-worker outside of work hours?
Social networking Web sites such as Twitter, Facebook and MySpace and “blogs” now permeate popular culture. Postings typically contain publicly available personal commentaries with little or no content review by the Web site administrator. And once this information is posted on the Internet, it often becomes difficult (if not impossible) to remove from public access. Thus, for employers, the networking and communication benefits that these technologies provide bring with them certain legal and practical workplace pitfalls. For instance:
- Employees can easily divulge confidential information online, including valuable and protected intellectual property.
- While employers are typically not required to monitor employees’ use of blogging and social network Web sites, if an employer becomes aware that an employee is being harassed in a setting that is related to the workplace (such as through a Web site frequented by employees), the employer may have a duty to stop the harassing conduct if it knows it is taking place.
- Conversely, an employer can expose itself to liability if it prohibits certain types of blogging and social networking – for instance, if the employee’s actions qualify as whistleblowing or are considered protected activity under the National Labor Relations Act or other statutes.
All employers should consider implementing written social networking and blogging policies that clearly identify employer expectations regarding employees’ use of social networking Web sites and blogs, that highlight for employees the risks of such postings and that plainly explain employer discipline for policy violations.
Notwithstanding these concerns, an at-will employee still can be terminated for posting negative or confidential information about her employer online, even if she does not use the employer’s network or act during working time to do so, absent protections under state law, a collective bargaining agreement or another source. Therefore, all employers should consider implementing written social networking and blogging policies that clearly identify employer expectations regarding employees’ use of social networking Web sites and blogs, that highlight for employees the risks of such postings and that plainly explain employer discipline for policy violations. A social networking policy should:
- Broadly define the policy to govern all publicly accessible communications made via the Internet, including communications made on blogs, discussion forums, newsgroups, social networking sites and e-mail distribution lists.
- Prohibit or limit access to blogging and certain social networking sites while at work or while using employer technology. While some employers encourage the use of professional networking sites such as LinkedIn, access to certain sites may be restricted depending on a number of factors, including the business purpose involved and the nature and prevalence of employee use.
- Expressly prohibit postings that contain defamatory, harassing or discriminatory content or that violate existing employer policies prohibiting such communications, and remind employees that all social networking communications while at work or while using employer technology are subject to the employer’s policies regarding harassment and Internet and e-mail use and that employees have no expectation of privacy in such communications.
- Advise employees that no posting should contain attacks or defamatory remarks about the company or its policies, business or clients.
- Prohibit employee postings that reveal confidential or proprietary employer information.
- Advise employees that they “blog at their own risk” and that they are personally and legally responsible for all content they post.
The foregoing list is only a summary, and employers should consult with legal counsel on the specifics of a particular policy. Also, because state or federal law may prohibit disciplining employees for posting particular content, employers should discuss with counsel any discipline related to social networking activities prior to imposing it.
Stradley Ronon’s Employment and Labor Practice Group is available to assist employers in drafting, reviewing and implementing social networking and blogging and policies, as well as in reviewing any proposed discipline as a result of an employee’s violation of such policies.
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