More than 50 percent of
Facebook’s 800 million worldwide users log on every day, and the fastest growing demographic is age 35 and older. The 100 million active
Twitter users tweet 250 million times a day.
LinkedIn’s 135 million users, who on average are 41 years old and earn in excess of $110,000 per year, conducted more than four billion LinkedIn searches last year.
The increased use of these and other social media sites is something construction company leaders must learn to manage before problems arise in the workplace.
According to a
Deloitte LLP survey, 55 percent of employees visit social networking sites at least once a week and 20 percent admit to visiting these sites during work hours. The survey also reports 33 percent of employees do not consider the business implications of online postings.
The proliferation of social media has generated numerous lawsuits against employers. For example, one court allowed a civil rights class action lawsuit against a major metropolitan police force because the employer was allegedly aware that some employees maintained a racially offensive website. Another court recognized a negligence cause of action against an employer for failure to prevent an employee’s improper use of its computer systems to post child pornography on the Internet.
Employers also have been found liable for using information posted on social media sites as the basis for adverse employment actions. For example, a national restaurant chain that terminated an employee for posting derogatory statements on a password-protected
MySpace account was found liable for improperly accessing the postings under the Stored Communications Act of 1986. In another case, an airline was sued after terminating a flight attendant who posted pictures of herself in uniform on a blog.
In 2011, the National Labor Relations Board (
NLRB) published an analysis of 14 significant cases involving social media, and the board’s Division of Advice has issued opinions on more than 10 such cases. This unprecedented level of NLRB activity can be expected to continue as employers struggle with workplace issues caused by social media.
Under current laws, an employer may regulate employees’ engagement in online social networking activities during working hours. Employers also may limit employees from posting disparaging comments or discussing the company’s business. To avoid litigation and other risks, such as the disclosure of confidential information, employers should implement a social media policy containing the following elements.
- Social media activities are subject to existing corporate policies that govern the use of the company’s communication and computer systems. Employees’ social media conduct also should be subject to policies that protect the confidentiality and use of company information, as well as policies that prohibit unlawful discrimination or harassment.
- Employees are subject to discipline, up to and including immediate termination, for violation of the company’s existing policies, including its electronic communications and social media policies.
- Employees are prohibited from using the company’s name or misrepresenting that they speak on behalf of the company. Employees should not use the name, trademarks, logos, or copyright-protected material of the company, clients, vendors, competitors or other third parties. Employees also must make clear that the views and opinions they express about work-related matters in any online activity are their own, have not been reviewed by their employer, and do not necessarily represent the views and opinions of the employer. Moreover, companies should prohibit employees from listing their company e-mail address unless the social networking site is used purely for company business or professional purposes.
- Employees are prohibited from disclosing the company’s confidential or proprietary information, or information regarding the company’s clients and business partners, or the details of a particular project.
- Employees may not post material that is obscene, vulgar, defamatory, threatening, discriminatory, harassing, abusive, hateful, or embarrassing to another person or entity, and they should not engage in activity that reflects, or may reflect, negatively on the company, its affiliates, employees or clients. Such comments may be deemed inappropriate even if the company’s name is not mentioned and if the posting occurred while the employee was not working or at work.
- Employees engaged in social media activities must remain respectful of the company, its employees, products, services, partners, affiliates, vendors, suppliers and competitors.
- Employees should expect compliance monitoring.
- Employees should expect that any information created, transmitted, downloaded, exchanged, or discussed on any social media platform will be accessed by the company at any time without prior notice and possibly even be shared with third parties, such as law enforcement agencies.
An employer’s right to regulate employee use of social media is not unlimited. At a minimum, an employer should include a disclaimer in its handbooks and in specific policies that states: “These policies or work rules are not intended to prohibit or interfere with employee rights to engage in protected concerted activities under Section 7 of the National Labor Relations Act.” It is particularly important to include this disclaimer in broad policies that prohibit disclosure of confidential information, harassment, disparaging or disrespectful remarks, or similar policies.
Finally, construction executives should appoint an official spokesperson to educate employees about the etiquette (and pitfalls) of social media, as well as answer employee questions. Managers should be instructed about what they can and cannot legally do as company representatives about employee use of social media.
As federal and state laws in this area evolve, employers can expect to face lawsuits or charges relating to their employees’ online conduct or for taking adverse employment actions based on employees’ online conduct. In the meantime, the legal risks presented by employee social media use can be managed with a policy governing online statements that might affect the employer.