February 1, 2011

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Joelle Kanshepolsky

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Tom Stockham

Under Cover


Slippery Slope

Be Careful When Mixing Social Networking and Business

Todd Weiler

February 1, 2011

Are your company policies in need of an extreme makeover? Are your employees tweeting on Twitter, blogging, Facebooking or texting about you or your company? Social media is loosely defined as a variety of web-based technologies that enable people to interact with one another online. It transforms ordinary consumers into content “producers” and empowers people like never before. Popular forms include blogs, Facebook, LinkedIn and Twitter—and they are the fastest-growing segment on the Internet. Utah is on the forefront of emerging issues as new technology confronts the workplace. On February 26, 2002, Salt Lake City resident Heather Armstrong became the first well-known person ever fired for what she wrote on her blog, www.dooce.com. The incident inadvertently spawned a new verb: getting “dooced,” or being fired for blogging. Since that incident, there have been thousands of employees disciplined for what they posted on Facebook or announced on Twitter. In September 2010, an employee for KTVX’s Channel 4 was fired for sending an errant tweet that was posted on ABC4’s corporate account. The employee, who confused his personal Twitter account with the corporate one, texted, “I’m downtown eating. Surrounded by Mormons and repressed sexual energy.” The message was quickly deleted but not before it was re-tweeted and commented on by other users. The station issued an apology more than two hours later that said, “A personal tweet went out that in no way is consistent with the station’s views. This issue has been addressed and we apologize for the tweet.” Draw the Lines It is no longer unusual for a company to sponsor a blog or a corporate Twitter account. Even if your company is not officially using social media, you can rest assured that your employees are. Every organization should adopt a social media policy that addresses hiring issues, vicarious liability, regulation of social media in and about the workplace, and termination issues. Companies should review their current policies and employee handbooks to bring them in compliance with this emerging technology. For instance, trade secret protection is based on reasonable efforts to keep information confidential. Accordingly, employers need to have a policy that is enforced. Here are a few tips to make sure your company is fully protected when your employees are using company-provided communications devices: Avoid a Complete Ban Don’t fear this new technology. Chances are your employees already participate on Facebook and LinkedIn and communicate with others through online blogs, Twitter, instant messaging, text messaging—and enjoy doing so. It is generally a bad idea to try to completely prohibit employees from participating in social media. Instead, create policies that protect the company and avoid the obvious pitfalls. Protect Confidentiality Your client and company information should be off-limits. Employees should not use social media to reveal your clients, trade secrets or other sensitive information. Your policy should ask employees to avoid engaging in discussions concerning the company or its clients through social media. Negative comments about the company or its clients may injure the company itself. Be aware, however, that your policy is subject to whatever rights your employees may have under applicable laws. Privacy Your company policies should put employees on notice that communications created, sent or received through the company’s systems are subject to the management’s right to access, monitor and disclose the contents of those communications. Discrimination and Harassment Social media should not be an excuse to ignore your company’s existing policies on sexual harassment or discrimination. Any communication that denigrates or shows hostility or aversion toward a co-worker’s race, color, creed, religion, ancestry, national origin, sex, disability, age, marital status, etc. should be prohibited. Use of Company Email Many companies are asking their employees to not use their company-assigned email addresses to set up personal, as distinguished from business-related, social media accounts and pages. FTC Guidelines If your employees are communicating positive statements about your company, the FTC requires them to disclose that they are employed by the company. On Twitter, for example, employees can simply include “#paid.” Common Sense Your employees should recognize that clients and potential clients may access their communications. Once something is electronically communicated, it continues to exist indefinitely, despite efforts to recall it. Reputations can be enhanced or diminished by the judgments people make in communicating through social media. The adage “send in haste, repent at leisure” should guide your employees’ electronic communications. Todd D. Weiler is Of Counsel in the Trial Group at Dorsey Whitney’s Salt Lake City office. Weiler’s practice centers on commercial litigation, with specialization in cases involving employment law. He has taken approximately 100 cases to trial and has appeared in over 750 hearings. Weiler is a graduate of BYU’s law school.
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