As social media use continues to overlap more fluidly between the personal sphere and the business world, more employers are writing dedicated social media polices, and many are also monitoring employee use of social media sites at work, according to a new survey.
The data comes from Proskauer Rose’s second annual “Social Media in the Workplace Around the World 2.0” report. In 2012, 68.9 percent of employers said they’ve created policies specifically for social media use, compared to 55.1 percent in 2011. Among the nearly 250 multinational businesses surveyed in the past two years, social media monitoring by employers increased from 27.4 percent to 35.8 percent in the last year.
“Those were two trends we saw that were notable,” says Proskauer partner Katharine Parker, who co-heads the firm’s employment law counseling and training group in New York.
So whether you’re drafting a new social media policy or updating an existing one, employers will want to consider both their business reasons and legal responsibilities for spelling out the dos and don’ts of using Facebook, Twitter and other social services at work.
Above all, employers should consider distinguishing rules about company sponsored social media activity from those about personal, nonwork related use. “The first thing a policy should be clear about is the type of use the policy applies to,” Parker says.
Companies have wide latitude to regulate what employees do when they’re engaging in social media on the company’s behalf. Employers should make clear that employees need to obtain company permission before setting up a work-sponsored account, Parker says, just as employers should articulate that the company owns the content, connections, screen names and passwords associated with the account.
At the same time, employees may have obligations to their employer, even when using personal social media accounts outside of the office. For example, an employee is still bound to maintain secrecy over a company’s proprietary information and trade secrets, Parker says. Likewise, she adds, “if there are code of conduct rules that apply to off-work time, these rules would apply to social media.”
Employers should also make clear to what extent employees are allowed to use personal social media on company equipment, Parker says. The survey found that 52.1 percent of respondents allow employees to access social media sites at work for nonbusiness use, up from 48.3 percent last year.
It’s also a good idea to remind employees that their social media use on company systems isn’t necessarily private. “An employer is entitled to monitor use of its own computer network,” Parker says, adding that “the company system may automatically capture communications that the employee thinks are private.”
Employers generally monitor company systems to make sure employees aren’t disclosing proprietary information, engaging in illegal activity, or harassing others, Parker says. But the National Labor Relations Act does contain a rule regarding the surveillance of union organizing activity, so the law “is something to be aware of,” she cautions.
What if an employer is weighing disciplinary action in light of an employee’s social media posts? According to the Proskauer survey, 35 percent of respondents said their business has taken disciplinary action against an employee in relation to misuse of social media — up from 31.3 percent of respondents last year.
Parker recommends that employers consider the following questions before accessing an employee’s social media communications:
- Is this a work-sponsored social media account, or the employee’s private account?
- Does the employer have permission to access it? For example, managers can’t coerce employees to show them a co-worker’s private account. However, if an employee doesn’t apply privacy settings to an account and is connected to hundreds of friends, they don’t have much of an expectation of privacy.
- What is the purpose for accessing and monitoring the social media account? Is it a lawful purpose?
In some situations, says Parker, employers may have a duty to investigate the information they receive about an employee’s personal postings — such as those that indicate illegal activity or a violation of company policy. For example, an employee might complain that a co-worker is using Facebook to harass them.
In other cases, an employer may be legally restricted from taking any action — like if an employee is criticizing management’s policies on a Facebook page. “That may be protected activity under the National Labor Relations Act,” Parker says.
So be sure to refer, too, to the National Labor Relations Board’s guidance to employers on what type of social media provisions might be considered overbroad. “Employers in the U.S. do need to take a look at that guidance when drafting a policy,” Parker adds.
One more question to consider before accessing an employee’s social media account, says Parker, is: are there other ways of obtaining the information? In some cases, an interview with the employee could suffice. At other times, however, the relevant information may only be available through a social media search — and the employer may need to act before the employee has an opportunity to erase the data.
Ultimately, “those answers are going to help guide employers about what’s the appropriate action to take,” Parker says.
Though do be sure to verify the information unearthed in a social media search, especially if it’s to be used for disciplinary action or in the course of a hiring decision. “An employer should make sure that’s accurate,” Parker says.
