Last month, we invited Eric to share his legal perspective on what should be included in Acceptable Use policies that cover employees’ use of computer, email, and the internet. He returns to discuss employee’s use of social media, such as Facebook, LinkedIn, and others. Staying connected to customers and clients is important, and so a lot of teams use social media for marketing and communications. Eric encourages having policies regarding the acceptable use of these services. Many companies do have such policies in place. However, companies should be mindful of the following issues when they go about crafting and enforcing these policies.
Did You Know?
Most companies implement a social media policy because they don’t want employees to say critical or embarrassing remarks on the internet regarding the company or management. They are obviously worried about comments negatively impacting the company’s goodwill or reputation in the community. However, due to the various laws that protect the right of workers to unionize, an employer cannot legally restrict and discipline employees who are critical of their employer or who communicate to each other about working conditions. This restriction on an employer’s ability to control and discipline employees who engage in speech related to their employer or working conditions, also applies to what they might post on social media. This is true regardless of whether the employee is a member of a union or not.
What to Do
It is important for companies to carefully craft these policies so that they are narrowly tailored to avoid broad restrictions. A policy, for example, should:
- Be specific by limiting disclosure of the company’s confidential business information; and
- Clearly define that term by referencing the company’s separate confidentiality policy.
Companies should also review their social media policy with the following in mind:
- Make it clear that the company monitors content posted by employees and that use deemed unacceptable (such as engaging in unlawful harassment of another employee or disclosing personal information of employees or customers that the company strictly holds confidential) will result in disciplinary action,
- Policies should also require, or at least encourage, employees to report any social media activity of other employees that they believe is inappropriate.
- Be mindful of restricting not only what employees say on social media, but also what photos or videos employees post and share, and
- Prohibit the posting or sharing of any images or videos taken in the workplace or at work-sponsored events.
Being Mindful of Employee’s Use of LinkedIn
Professional social networking sites, such as LinkedIn, raise some issues that should be considered in a social media policy. As employees use LinkedIn to make professional connections, they are generating valuable contact information of clients, potential clients, or other business connections. If this valuable information is maintained solely on an employee’s LinkedIn page, however, the company has no control over how this information is maintained or used by the employee. If the employee leaves, the company has virtually no ability to retrieve that information, which arguably is valuable and proprietary information of the company.
How to Protect Your Company’s Contact Info
Social media policies can be crafted to make it clear that the company owns all contact or other information provided to the employee by clients and other business connections. The policy should also instruct employees to save new or updated client information that they receive via LinkedIn connections to the appropriate company file (or forwarded to the appropriate person at the company).
Employees should also be restricted to only use the client information for business-related purposes, and may not be forwarded or disclosed to other persons unless it is business-related. The policy may also include a requirement that upon separation from employment, employees are to turn over to the company all client information maintained on the employee’s LinkedIn page.
It is important for employers to put in place policies that address post-employment use of the LinkedIn profile or other similar social media profile. For example, employees should be instructed to update their LinkedIn page by a certain deadline to reflect that they are no longer employed by the company. Where appropriate, employees may also be instructed to disconnect from any LinkedIn contacts that the employer believes were made solely because of the employee’s employment with the employer and may be exploited or used inappropriately by the former employee.
Speaking of former employees, next month Eric discusses the importance of having policies and procedures for exiting employees in terms of their computer access and use.
About Eric Gunderson
Eric W. Gunderson is an attorney and partner at Farrell & Gunderson, LLC. Mr. Gunderson focuses his practice on working with businesses and their corporate leaders to provide counsel and representation in matters involving employment law, employee relations, business disputes, and other business and civil litigation matters in Howard County as well as throughout Maryland and the District of Columbia.