4.14 Social Media Policies
Library | The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.) |
4.14 SOCIAL MEDIA POLICIES
4.1401 Potential Risks Related to Social Media Use. Before an employer begins drafting a social media policy, it should first consider the harms that the policy is intended to protect against. Different organizations will be more concerned about some risks than they are about others, and their policies should reflect those concerns. The potential harms can be
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roughly divided into three groups of users: employees, managers, and other key personnel.
4.1402 Employees' Use.
A. In General. Potential risks of employees' social media use can be grouped into three categories: business risks, reputational risks, and legal risks.
B. Business Risks. Perhaps the most common complaint by employers is the use of social media by employees during working time. Productivity is a legitimate concern and one that can be addressed in a social media policy or in an acceptable-use policy.
A related complaint comes from information technology (IT) personnel dealing with increased demands on bandwidth caused by employees' increased use of the Internet during the workday.
Diminished morale is a risk that receives less attention than productivity or IT resources but is equally important. Coworkers posting petty or hurtful comments about other employees online can adversely impact teamwork, innovation, and creativity.
C. Reputational Risks. The reputational damage that can be caused by an employee's insensitive, inappropriate, or just plain tacky social media posting can be far reaching and long lasting.
D. Legal Risks. Comments made by an employee online can be imputed to his or her employer for purposes of liability in the following ways:
1. Harassment. Harassing conduct that takes place online is just as unlawful as harassing conduct that occurs in an office setting. 510 The trigger for liability is the employer's knowledge (actual or implied). Once the employer knows or has reason to know that its employee is being subjected to unlawful harassment, it has a duty to act immediately.
2. Defamation. An employer can be held liable for defamatory statements of its employee, if the employee purported to be speaking on the employer's behalf.
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3. Endorsements. The Federal Trade Commission's revised "Guides Concerning the Use of Endorsements and Testimonials in Advertising" 511 require employees to disclose their employment relationship or other affiliation anytime they "endorse" their employer.
4. Intellectual Property. Employee disclosure, inadvertent or otherwise, of a company's trade secrets, client or customer list, pricing data, or strategic plans can have significant detrimental impacts on the organization's intellectual property.
5. Confidentiality. Depending on the industry, there are a number of potential risks relating to disclosure of confidential information. For example, consider the incident several years ago when a temporary employee working for Microsoft posted pictures of Mac desktop computers being delivered to offices at the Microsoft campus. 512
6. HIPAA. Employers in the health-care industry face significant challenges in ensuring that patient health information is not disclosed. When a nurse at the University of Mississippi Medical Center tweeted that Governor Barbour had visited the clinic during off hours, she was terminated for the disclosure. 513
7. Personnel Data. Nearly all states, including Virginia, have identity theft laws that require an employer to notify all affected employees if their personnel data is compromised and outline the steps that should be taken if its employees' personal identifying information is released without the employees' consent. 514
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4.1403 Supervisors' Use.
A. In General. Supervisors are also online at social networking sites, and their use poses additional risks to their employers. 515
B. Discrimination. Comments by a supervisor that show discriminatory bias may be imputed to the employer, regardless of whether the comments are made in person or online. Moreover, information learned by a supervisor via social media about an employee could be used to support a discrimination claim. For instance, a supervisor could learn from social media about an employee's medical condition, religious affiliation, marital status, or other information that an employer is generally prohibited from asking about directly.
C. Retaliation. Social media presents a variety of new ways that retaliation can occur in the workplace. For example, consider an employee who complains of discrimination and is subsequently "unfriended" by his or her supervisor. In that scenario, unfriending via Facebook is the modern-day equivalent to...
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