|The Internet opened the door to the explosion of what has become known as social networking. Generally consisting of a website or discussion forum in which users can connect and share information, social networking provides employers with unprecedented opportunities to communicate with clients and potential customers. As those networks expand, with each “friend” “friending” others and each tweet inspiring another tweet, employers must consider the actions they take with respect to employees as a result of social media information. For all of the benefits that social networking provides to businesses, it can also result in serious financial and legal consequences.|
|Employers must be aware of their employees’ use of social networking both at work and after the workday has ended. All of this is complicated, however, by privacy rights and libel and discrimination claims, as well as the evolving rules covering the discovery of information on social networking websites in litigation. Lawyers must be in tune with their clients’ use of social networking media and provide constantly updated advice and guidance. Lawyers must do so even in the face of many clients’ belief that social networking provides a transparency in communicating with their employees and clients that outweigh any potential costs. Even worse, some clients view social networking as a passing fad and have no interest in investing any time or money in understanding its potential impact on the workplace.|
|A little background is in order. The genesis of the social networking frenzy began with Friendster in 2002, then MySpace and LinkedIn in 2003. Facebook and Twitter followed in 2004 and 2006, respectively. In just a short period of time the number of people and businesses using social networking has increased tremendously. Today, for example, there are 500 million active users of Facebook, 250 million of which log on at least once a day.1|
|Similarly, approximately 79% of Fortune 100 companies are using at least one of the main social media tools.2 Simply because a business does not use social networking, however, it should not presume that it is immune from its effects. Even if an employer does not already have a presence on a social media website, it should expect that many of its employees do.|
|Unfortunately, employers and employees often have differing views as to the use of social media in the workplace, which can create workplace issues. The Deloitte LLP 2010 Ethics & Workplace Survey, focusing on trust in the workplace, notes that “there is a persistent gap between employee and employer views on the appropriate use of and access to social media sites….”3 The Deloitte study claims that 49% of executives believe that social networking helps build trust in the workplace whereas 62% of employees prefer not to be “friends” with their managers on social networking sites. Similarly, 66% of employees believe that they should be permitted to access social networking while working, whereas 54% of employers believe that employees should be barred from social networking while working.4|
|This divide clearly shows the need for a clear workplace policy regarding the use of social networking. Unfortunately for employers, the failure to have a clear policy with respect to social networking that is monitored and enforced could lead to serious consequences, including public relations disasters; the release of confidential information; or litigation in the form of harassment claims, privacy violations, or violations of intellectual property rights. Indeed, friending, linking, tweeting, or checking in with foursquare, with or by employees, can be an employer’s worst nightmare. An employer should not be fooled into believing that the dangers of social networking are limited to entry-level employees. Just ask John Mackey, former co-founder and CEO of Whole Foods. In 2007, it was discovered that he had been posting to online message boards to inflate his company’s stock and undercut its competitor. Not only was this a public embarrassment to Whole Foods, but the Federal Trade Commission used this information in its efforts to block Whole Foods from buying its competitor on antitrust grounds.5|
|Similarly, an employer should not be lulled into a false sense of security simply because it limits its employees to accessing only the company’s maintained or approved social networking sites. This is precisely what happened to Continental Airlines. Continental was found to be potentially liable for harassment for statements made by its employees on Continental’s online computer bulletin board even if the harassment occurred outside of the workplace.6 At issue was whether Continental had a duty to take effective measures to stop co-employee harassment that was taking place on a company sponsored electronic forum that was hosted by an independent internet service provider. A key question was whether the forum was sufficiently related to the workplace to impute a duty upon Continental.|
|Employers must be aware, however, that monitoring or accessing their employees’ use of social networking without the employees’ consent can subject the employer to civil liability. The Hillstone Restaurant Group made this mistake. Hillstone’s former manager allegedly coerced an employee to give him access to a social networking group created and maintained by employees as a forum to vent about their work experiences.7 After reviewing allegedly offensive material on the forum, the manager terminated an employee. As a result of its actions, Hillstone Restaurant Group was sued for, among other things, violations of the Wiretap Act, 18 U.S.C. § 2510 et seq., the Stored Communications Act, 18 U.S.C. § 2701 et seq., wrongful termination, and invasion of privacy. A jury found that Hillstone violated the employee’s rights under the Stored Communications Act by viewing stored electronic information without permission, and awarded punitive damages. Therefore, employers must be aware that while monitoring employees’ use of social networking may be necessary to protect an employer’s legal interests, such monitoring – if conducted improperly and without consent – could violate an employee’s legal rights and subject the employer to litigation and damages.|
|Although social media is a new and evolving area of law, employers should remember to treat social networking as they would any other media or form of communication. In a recent decision in the Eastern District of New York, the plaintiff made a hostile work environment claim based on, among other things, a MySpace page maintained by a supervisor that displayed pictures of some of the company’s employees in seductive poses.8 The Court ruled that, while the supervisor may have inappropriately used the company logo on the MySpace page, the site itself did not contain any gender-related hostility and the plaintiff had to go out of her way to view the site. As such, the MySpace page was not pervasive in the workplace environment and did not create a hostile workplace. Nonetheless, this is a cautionary tale.|
|Lawyers navigating these waters on behalf of their clients must assess the legal risks of social media and provide advice on how to keep social networking in order. A quick fix may be to ban social networking access from the workplace. The Deloitte study found that 40% of executives say their company does not allow access to social network sites from company computers. However, this does not completely absolve employers of the risks, as it does not prevent “friending” from personal mobile devices or home computers. Some employers go so far as restricting the content of employee posts, which might, for example, include prohibiting employees from taking stands on contentious issues or broadcasting political affiliations.9|
|A more sensible approach is to create a written, formal policy regarding employees’ use of social networking. Such a policy should conform to both the law and the employer’s general workplace policies and culture. Due to the ever-changing nature of social networking, the policy should be periodically reviewed and revised to reflect changes in social networking itself. In addition, a senior executive who has the authority to administer any policy, even against senior employees, should implement its rules. Finally, any policy should inform employees that their workplace social networking might be monitored, and should clearly set forth the consequences of failing to comply with the written policy, up to and including termination.|
|In conclusion, when it comes to social networking, employers will want to know from their lawyers how to balance First Amendment and privacy rights of their employees with vigilant management of inappropriate content and behavior. We may not know the answers to these questions until policies and programs are challenged. As the nature of social media continues to change, the law governing its use will have to evolve. Steps taken to manage social media grounded in common sense will provide most employers a firm legal foundation for its actions.|
|Jennifer McLaughlin is a partner, and Justin Capuano is an associate, at Cullen and Dykman LLP in Garden City.|
|1. See Press Release, Facebook, Press Room, Statistics, http://www.facebook. com/press/info.php?statistics(last visited Dec. 28, 2010).
2. Jason Zhan Jia, 79% of The Fortune Global 100 Are Using Social Media, Social Media Today, at http://www.socialmediatoday.com/SMC/188506 (Apr. 12, 2010)
3. Deloitte LLP 2010 Ethics and Workplace Survey
5. See Andrew Martin, Whole Foods Executive Used Alias, N.Y. TIMES, July, 12, 2007, available at http://www.nytimes.com/2007/07/12/business/ 12foods.html?_r=1&scp=1&sq=whole%20foods%20ceo%20ftc&st=cse.
6. Blakey v. Continental Airlines, Inc., 164 N.J. 38, 751 A.2d 538 (2000).
7. Pietrylo v. Hillstone Rest. Group, 2009 WL 3128420 (D.N.J. Sept. 25 2009)
8. Urban v. Capital Fitness, CV-08-3858, 2010 U.S. Dist. LEXIS 124307 (E.D.N.Y. Nov. 23, 2010)
9. http://www.wired.com/images_blogs/threatlevel/ 2009/06/apsocialnetworkingpolicy.pdf.
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