Businesses across Minnesota are struggling to define the boundaries of appropriate employee use of social media and to what extent the employer has a role in monitoring and managing such social media use. In addition to concerns about employee productivity, the sophisticated electronic communication tools available to employees create new challenges for businesses including potential harm to reputation and brands, theft of trade secrets and other confidential information, and potential liability for employee behavior online.
An important tool in managing the legal risks associated with employees’ use of technology and social networking sites is a well-crafted technology and social media policy that balances company needs and concerns against employees’ legal rights. Some of the business and legal risks that an employer should address in a technology and social media policy include:
Covered technology and devices:
Employers should consider whether the policy will extend only to employer-paid or provided devices or whether the employer may lawfully and should extend the policy to personally owned devices used for work purposes. The law is still evolving in this area, and it is not clear that employers have the legal right in all jurisdictions to search an employee’s personal device or personal email account on a company or personally-owned device. However, having a clearly-worded policy can improve an employer’s legal position in arguing that it has the right to access any technology devices used by an employee for work purposes.
A policy should include an express warning that the employer retains the right to monitor and review the use of and content on any technology and devices covered by the policy. However, there have been court decisions finding employers liable for improperly accessing or using online content, particularly where the content was on a website with restricted privacy settings, such as Facebook. As such, employers should take care to ensure they lawfully access online content, and they should consult with counsel to ensure compliance.
Permissible and impermissible uses:
The policy should explain the permissible and impermissible uses of technology and social media. Items to address might include personal use of technology on work time, employees’ obligation not to use technology in unlawful behavior, the need to protect confidential or trade secret information, and the need to respect others’ intellectual property rights. An employer may also want to prohibit employees from engaging in any company-related blogging, tweeting, or the like without express written permission of the company to engage in such social networking on behalf of the business.
Lawfully protected employee activity:
In setting out any prohibited conduct in a workplace policy, employers must take care to balance the employer’s needs against employees’ legal rights. A job applicant’s or employee’s use of technology and online content may be legally protected by discrimination, anti-retaliation, lawful consumable products, lawful activity, labor laws, or other laws. As such, an employer should be cautious in rejecting a job candidate or disciplining or terminating an employee for online activity to ensure that adverse action is not taken based on legally-protected activities by the individual.
Wage and Hour issues:
Non-exempt employees generally must be paid at least minimum wage for all time worked and overtime pay, which can include time spent checking voice mails or emails away from work. In addition, wage and hour issues may arise for employees using remote technology while telecommuting or on a leave of absence. As such, an employer should consider addressing limits on the use of technology by non-exempt employees outside of normal working hours or by employees on leave.
Photography and recordings:
Smartphones and other mobile devices make it far easier than in the past for employees to secretly record conversations at work or to take unauthorized photographs or videos that might be widely disseminated on the internet and go “viral.” Depending on the employer’s business and its unique risks, a technology policy might include language prohibiting the use of devices to make recordings or take photographs. However, an employer should consult with counsel to ensure that any such language does not run afoul of an individuals’ Section 7 labor law rights or other employment law rights.
The Federal Trade Commission (FTC) has taken the position that false and misleading advertising laws apply to online postings. As such, employers should include language in any policy that advises employees of the need to comply with FTC requirements when making endorsements or testimonials about the company online.
Return of company data:
An employer should make clear that all company data, including any electronic data stored on an employee’s personally-owned devices, such as a tablet, smartphone, or personal computer, must be returned to the company upon request or when an employee leaves employment. An employer that has a “bring your own device” approach to workplace technology should consider including language in a technology policy stating that employees agree to turn over their personal devices to the company to permit the company to wipe any company data from the device.
CREDIT: The content of this post has been copied or adopted from the Minnesota Department of Employment and Economic Development’s “A Legal Guide to the Use of Social Media in the Workplace”