May 2012 Bar Bulletin
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May 2012 Bar Bulletin

Twenty-Four/Seven Access Requires Clear Social Media Policies

By R. Brent Ballow


Instances of employers firing workers for social media slip-ups have been consistent in the news over the past few years. According to one recent study carried out by the market research firm Applied Research, a typical company has experienced nine social media mistakes and 94% of these companies suffered negative consequences as a result, including loss of reputation, loss of customers, employee turnover and lost revenue.

Moreover, the legal land mines presented by employee social media activity are endless - never before have employers faced a vehicle that comprehensively incorporates almost every employment-related legal issue.

These problems are exacerbated because most employers are slow to recognize the potential problems until it is too late. The issues are much broader than posting inappropriate photos and the solutions require employers to be proactive by developing policy and, most importantly, training managers and employees on the implications of the policy. According to Avant Resources, less than 10% of companies polled have implemented such training programs.

Developing a social media policy requires a thorough understanding of the vast legal issues presented. These can be divided into three parts: (1) employer liability for employees' misuse of social media; (2) disciplining employees who misuse social media; and (3) monitoring and regulating employees' social media use.

Employer Liability for Employees' Misuse

Discrimination and hostile work environment claims have haunted employers for years. New theories and new fact patterns have always been present in this area without the aid of a new vector such as social media, which now provide employees with a creative and addictive tool for engaging in inappropriate behavior 24/7.

Rumors, offensive statements, gossip and malicious statements directed at a host of different people or entities by employees and managers can create liability for employers. Workers also can place their employer in clear danger if they inadvertently post proprietary or confidential information. With social media, dissemination of legal fodder is instant and the reach is unlimited.

According to the Federal Trade Commission Guides focused on "endorse­ments and testimonials in advertising," employers also can face liability when employees comment on the company's products or services without disclosing their relationship to the company.

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