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You are on the phone with a colleague and suddenly you feel as though you are speaking to yourself. You hear in the background the clicking of a computer keyboard, and you realize that you've lost the other person's attention. They are surfing the Internet or, more likely, checking their Facebook or Twitter account.

Your associate brings to your attention the Facebook page of a plaintiff or a claimant in a sexual harassment claim which includes revealing pictures of the claimant.

Your own Facebook page identifies people you may know whom you may wish to "friend" -- and some of them are colleagues or associates in your law firm.

You are "friended" by an associate in your law firm, or an adversary, or another person with whom you have a professional relationship.

Your client informs you of a Twitter post in which an employee has made comments criticizing the company's promotion and pay practices, suggesting they may be discriminatory.

Your client's director of human resources has posted anti-gay comments on his MySpace page.

The above list of events is but a small sampling of the kinds of day-to-day issues that face employment lawyers -- and all of us. Dalton Conley, a sociologist and acting dean for social sciences at New York University, says that the BlackBerry is a symbol of always being beckoned somewhere else. In comes an e-mail from a colleague, a client, each asking for a little piece of our attention, which, if granted, only begets more demands on our time. We're pulled by work when we're at home and by home when we're at work, torn by the multiple things we could be getting done.[FOOTNOTE 1]

What does this mean for employers? It means, first, that employees -- many, many of them -- are spending more and more time on social networking sites. We are doing it when, presumably, we should be doing something else. We should be concentrating on the task at hand. We should be speaking to the client or the colleague on the telephone. And, perhaps, we should be speaking with our spouses or children. Some of us check our e-mail before we have our morning coffee.

We are using these sites as an alternative for normal, or should I say traditional, business communication. Rather than reaching out to colleagues or former colleagues by in-person meetings or even via e-mail, we are signing on to sites like LinkedIn and Facebook, and making our own virtual connections.

And yet, these tools are extraordinarily useful. Companies are making new use of Web development and Web designs that facilitate interactive communications. The term "Web 2.0," which all of us will be hearing about more often, relates to the increasing use of interactive social networking and media software and services. These will permit sharing of information in ways that may be very helpful to our clients, and to the practice of law.

Associates are quite familiar with these new Web technologies; they use them and take advantage of them in the everyday performance of their jobs; and law firms that hope to attract and hold talented lawyers need to demonstrate their own familiarity and utility with these products.

And, of course, our clients are familiar with and making broad use of these tools. If we, as counsel, are unable to communicate with them and understand these tools, then our ability to advise them effectively is diminished.

USEFUL AND TROUBLESOME

All of us now have enormous access to what was previously regarded as either private or unattainable information. Years ago, if a client was sued by an individual who you or your client thought could be delusional, there was little way to verify that except to hope that it would come out one way or another in evidence via document production, the testimony of professionals who had examined the individual, or that he or she would reveal their true selves in oral testimony.

These days, though, difficult people tend to self-identify. They create blogs. They create Facebook and MySpace pages. They tweet on Twitter.

They send spontaneous e-mails reflecting thoughts that might never otherwise come to the surface. They comment randomly and offer their opinions endlessly. Is it any surprise, for example, that Nidal Malik Hasan, the alleged shooter at Fort Hood, may have made Internet postings praising suicide bombings?[FOOTNOTE 2]

These individuals also create trouble for employers. For example, in Forsberg v. Pefanis,[FOOTNOTE 3] the Georgia district court found that the plaintiff in a sexual harassment claim sufficiently alleged retaliation to survive summary judgment when, after she filed her lawsuit, the alleged harasser, among other things, contacted one of the plaintiff's friends in an attempt to gain access to her private MySpace account and obtain personal and private information about the plaintiff and her family.

In Wolfe v. Fayetteville,[FOOTNOTE 4] evidence of discrimination included a Facebook group created by the alleged harassers titled "Everyone Hates [Wolfe]." The site was rife with discriminatory and highly offensive comments. Threats were made by the group, and the plaintiff was allegedly assaulted shortly after the online threats.

Of course, other significant problems surrounding social media include the possibility that confidential, trade secret information may be circulated instantaneously throughout the cybersphere. Employees have instant access to highly confidential information that can be instantly shared with anyone with an e-mail account -- or, even worse, it can be posted on the Internet -- with a few keystrokes.

ESTABLISHING GUIDELINES

The basic principles don't seem to have changed. Create damaging evidence and it will be discovered. The problem is that more and more evidence is digital. It is created spontaneously by legions of employees who have direct access to electronic databases that automatically preserve their statements. These statements may be used as evidence against the employer.

How can employers prevent careless and possibly liability-producing use of social media? Much of the answer involves common sense.

Employers need to establish clear guidelines -- for employees, human resources, managers and executives, regarding the proper use of online services.

For example, using social media to access information about applicants is easier than ever, but these media can contain information (such as age, race, religion, color, sexual orientation and just about every protected category of information), the use of which would be illegal.

Taking action against an employee because their Facebook page or Twitter posts suggest they have emotional difficulties or mental health problems may itself be a violation of anti-discrimination laws. If a Web site reveals that an employee is a believer in Islamic fundamentalism, this is not by itself information that can justify an employer's adverse action.

On the other hand, social media sites may contain helpful information about an individual's qualifications to perform the job -- though they will more likely reveal disqualifying (or embarrassing) information (or pictures) about an applicant that the employer could not readily obtain elsewhere. They may also provide an employer with information that an employee has not been truthful, and that may provide the basis for discipline or even termination. For example, through an employee's "status updates," an employer may learn that an employee's reason for requesting time off was false, or that an employee receiving disability or Workers' Compensation benefits is not injured.

Having an employee "friend" another employee, or even a manager or supervisor, may create new ways for the employees to effectively communicate and bring to each other's attention information that is helpful to the employer, and to each employee in performing their jobs.

On the other hand, "friending" an employee may in some cases cross the line of propriety. It can put the receiving party in a difficult bind -- whether to accept the invitation and gain the supervisor's (or subordinate's) confidence, or to reject the invitation and risk insulting them. What may start out as a friendly virtual "poke" may lead to harassing and inappropriately personal messages which could in turn create a hostile environment or otherwise encourage a harassment claim.

Employers need to set ground rules. They need to establish consistent procedures for the use of social media in the workplace. They should clearly state that misuse of social media may lead to discipline or termination of employment. They should take steps to protect confidential, trade secret information.

Again, some common sense rules: Employers should instruct employees not to access (or, at least, to limit their time spent on) social media during work hours, except for business purposes. They should provide clear guidelines to employees on identifying themselves as employees of the company on sites, and clearly explain who is authorized to speak on the company's behalf and who is not.

Employees must be cautioned about the kinds of liability that may result from inappropriate postings. They should be trained about how social media postings may result in claims of defamation, discrimination, harassment and invasion of privacy. They must be made to understand that in a lawsuit, their blogs, postings, e-mails, and other digital chatter may be subject to discovery. Even Gmail and Yahoo mail may be discovered if it contains information relevant to a dispute. It is not unusual, moreover, for personal computers to be demanded to be produced or preserved for potential searching in a lawsuit.

Employers need to clearly communicate to employees that they do not have a reasonable expectation of privacy when it comes to their use of company computers, BlackBerrys, and similar devices to communicate on these sites.

OPPORTUNITY AND LIABILITY

Social media and the use of the Internet is a phenomenon that is growing every day, and moving in directions that none of us can imagine. What has become very clear is that the way we are communicating has changed dramatically. It will change whether or not we change with it.

Of course, these new phenomena inevitably affect the workplace. To some degree, they have already displaced the boundaries we have tried to set between our personal and our work lives.

It's not all bad and it's not all good, but employers need to acknowledge this significant shift, and try to take from it the positive. Employers need to use the tremendous opportunities these new media offer, while they take steps to avoid the significant opportunities for liability they create.

Philip M. Berkowitz is a partner at Nixon Peabody where he chairs the international employment law practice team. Randy Gidseg and Renee Jackson, associates in the firm's labor law group, assisted in the preparation of this article.

::::FOOTNOTES::::

FN1 See E. Eaves, "The Elsewhere Man," Forbes, Feb. 16, 2009.

FN2 See J. Dao, "Suspect Was 'Mortified' About Deployment," New York Times (Nov. 5, 2009).

FN3 2009 U.S. Dist. LEXIS 33594 (N.D. Ga. Jan. 26, 2009).

FN4 2009 U.S. Dist. LEXIS 15182 (W.D. Ark. Feb. 26, 2009).

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