Social networking and social media are increasingly incorporated into the workplace, but not without dangerous issues arising. Employers need to be ready to handle issues relating to social networking that occur during both on- and off-duty hours.
In Part 1 of this blog post (the first 4 steps in the checklist), we focused on the employer’s development of a social media policy that would help avoid some social media landmines. Here we consider particular actions that employers can take to deal with social media issues once they arise:
5. If an employer discovers blogs that negatively affect the employment relationship, don’t immediately file suit; instead, consider potential alternatives.
- Prepare a provision in the employer’s electronic policy statement that prohibits employees from anonymous postings about the company and requires employees to disclose their identity when they are communicating on a blog about the employer.
- Prepare a demand letter and request that the negative posting be taken off the website, particularly if the posting is by a former employee who may be engaging in defamation.
- Simply ignore the posting, because, like the news, today’s headlines are easily forgotten within a few days. Allow for a cooling off period and gauge the likelihood that negative comments may tarnish the company’s image or sales.
6. Before taking action against an employee for off-duty conduct that involves use of social media, check the relevant state statutes to determine whether such conduct is protected. For example, many state statutes protect employees for off-duty conduct such as political activity, consumption of lawful products, or other conduct.
7. If the employer has taken action against an employee for violating one of its policies on social media or use of the company network, be very careful about monitoring Internet usage or technology because it can be seen as retaliatory after a complaint is filed. In Zakrzewska v The New School (SD NY 2008) 543 F Supp 2d 185, 187, the court allowed the plaintiff to amend her complaint to allege that she was retaliated against after complaining of discrimination because her employer engaged in covert monitoring of her personal Internet use at work. The court indicated that such retaliation could dissuade a reasonable employee from making a complaint about discrimination.
8. Once litigation begins, consider sending out a preservation letter to opposing counsel directing the employee to preserve all communications on any company device such as a smartphone, portable laptop, personal handheld device, or iPad.
9. When entering into settlement negotiations, consider postings that need to be removed on social media websites. As part of the settlement, consider including in the agreement provisions that require the employee to cooperate with the employer to remove negative comments from websites, to agree not to post negative comments in the future, and to provide a list and location of all social media websites on which the employee has posted negative communications.
This checklist is from The Legal and Effective Business Use of Social Media in the Workplace by Theodora R. Lee, a senior shareholder/partner with Littler Mendelson, P.C., San Francisco. Check out the full article in the December 2012 issue of the California Business Law Practitioner, a must-have quarterly reporter with practical and timely information on business-related topics.
For more on employer policies generally, turn to CEB’s Advising California Employers and Employees. Also check out the human resources chapter in CEB’s Internet Law and Practice in California. On monitoring Internet use by employees, check out CEB’s Privacy Compliance and Litigation in California, chap 8.
Related CEB blog posts:
- Update Your Social Media Policies
- Clashing Concepts: Trade Secrets and Social Media Networking
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