Web 2.0: For Employers, Ignorance Is Not Bliss

One of the greatest challenges of the 21st century workplace is dealing with social media and employees’ use of it during and after work.

Early on, the first challenge for employers was dealing with the use of company equipment and software and establishing rules for e-mail use. Now, employers find themselves addressing a second challenge-”social media, and specifically sites like Facebook, MySpace and Twitter.

To date, employer responses have ranged from total prohibition of the personal use of social media in the workplace to embracing it as part of a corporate marketing strategy. Many other employers have resigned themselves to the futility of banning and monitoring its use.

Even if its use is banned in the workplace on company-owned equipment, the development of the smart phone allows an employee to access the Internet and social media at work without using the employer’s equipment or technology. One fact is clear– an employer needs to address the issue and adopt a policy.

A recent workplace incident highlights some of the issues and problems facing employers. A professor at East Stroudsburg University was suspended indefinitely for posts on her Facebook page. The professor has 32 friends, none of which were students.

The first post inquired if anyone knew where she could hire a very discrete hit man because it had been that kind of day. The second post a month later noted that she had a good day and did not want to kill even one student, but, that “Friday was another story.”

The professor said that in a disciplinary meeting with supervisors, she was asked what she was thinking and was told her comments may pose a threat, with a reference by the administration to the shootings in Alabama.

The professor has stated that the suspension may be related to a 2008 incident in which she published an essay critical of attempts to retain minority professors, which ultimately led to a series of meetings with administration. She also wondered how the posts came to the attention of the administration.

What are the issues an employer has to review before creating and implementing a plan? How broad can the policy be? Can an employer regulate or monitor an employee’s off-work social network use? Unfortunately, there are no easy answers.

An employer must decide what the desired results are and whether they are realistic. The following are areas to be addressed in any policy:

-¢ Use of company equipment and software.
-¢ Access to the Internet at work.
-¢ Content on social media regarding work and violations of company policies.
-¢ Employer monitoring of media.
-¢ Identification and communication of legitimate employer concerns.

An employer has a legitimate concern that an employee’s use of social media, such as Facebook, may contain content that violates company policies. Such policies include harassment, violence, disclosure of confidential/proprietary business information, and disparagement of the company or its employees. An employer needs to tell employees that if it becomes aware of inappropriate content, it will investigate and take appropriate action.

An intriguing potential trap for employers arises out of monitoring password-controlled sites such as MySpace and Facebook. For example, two employees of a restaurant set up a MySpace page and posted complaints about their working conditions. MySpace is a password protected, invitation only site. Two managers became aware of the site and asked another employee to give them her password so they could access and review its contents.

The employees were terminated and then sued under state and federal law. A jury found that the company had violated the Stored Communications Act and that the violation was willful because the employee was coerced into providing the password for access. Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420, 29 IER Cases 1438 (D. N.J. 2009).

When confronted with information that content on a password protected site may violate a company rule or policy, an employer should do the following:

-¢ Advise the employee who is alleged to have posted the material that it is conducting an investigation.
-¢ Request to review the post, and if unable to review it, conduct its investigation and make a determination on the evidence available.

Interestingly, copies of posts or a verbal or written description of the post in question given by individuals with valid access to the site can be used.

Most employers have enough challenges in today’s economy without becoming “Big Brother” with respect to social media. At the same time, however, employers have reason to be concerned about content that may violate company policies or otherwise jeopardize the company’s interests. One thing should be clear to employers — failing to address the issue and to formulate a policy is a poor decision.

John Holmquist serves as senior counsel to Foley & Mansfield’s Ferndale, Mich. office in the area of employment and labor law. He can be reached at [email protected].