As the social media universe expands and more users join networks every day, the risks for businesses also appear to be on the rise. A new survey from Proskauer Rose indicates employers are disciplining workers more when it comes to employees’ use of social media.
In the survey, “Social Media in the Workplace Around the World 3.0,” Proskauer reports 71 percent of the more than 110 businesses that responded have had to take disciplinary action against an employee for misusing of social media. This is a tremendous jump from last year’s iteration of the survey, in which only 35 percent reported they had to take this kind of action. The jump in the numbers begs the questions—what are businesses doing, and what can they legally do to make sure social media in the workplace doesn’t become a disaster zone?
Dan Ornstein, a partner at Proskauer and cohead of the firm’s international labor and employment law group, told CorpCounsel.com that the more people use Twitter, Facebook and other social media, the more blurred the distinctions become between personal and professional use—resulting in some problems. “People are caught off guard when they are tweeting or posting because of that blur,” he said.
To prevent problems before they start, the survey found, companies are increasingly creating official social media use policies. Since last year’s survey, the number of companies with these policies has increased from 60 to 80 percent, and more than half of businesses have updated their policies in the last year. Having a policy with specific guidance and real-life examples of right and wrong is important, said Ornstein, but it isn’t everything.
“There’s only so much impact that policy has if it’s not enforced through an actual training session,” he said. Only 38 percent of the companies surveyed actually provided training on social media use, a number that hasn’t shifted much since the last survey.
Some companies—36 percent—try to stop social media problems by blocking specific sites on work devices. Ornstein noted this poses practical problems because employees may interpret blocking as a sign of employer distrust. And employees will often find ways to get around the block anyway.
If the employer is in the U.S., blocking these sites can also pose legal issues. The report explains that in many jurisdictions, blocking is permissible during work hours, both on company equipment and employee devices. However, in the U.S., the report warned, employers have to be careful blocking practices don’t infringe on employee rights under Section 7 of the National Labor Relations Act, which protects employees who want to engage in “protected concerted activity,” including voicing complaints about working conditions.
But being outside the U.S. doesn’t mean it’s OK to block. In several other countries, blocking access to social media from employee devices such as mobile phones poses legal problems too. The report notes Argentina and Japan, for example, both permit workplace policies that allow employers to block social media, but also prohibit interference with employees’ devices.
There is even more variation among jurisdictions, according to Ornstein, in the employer’s ability to actually monitor employee social media activity at work. In the United Kingdom, he said, monitoring requires employee consent. “But in other jurisdictions, employee consent just isn’t enough,” he explained, citing countries such as France, where getting a collective employee agreement—through a trade union for example—to allow monitoring is the only legal way to keep an eye on employees’ social media activity. In a growing number of jurisdictions around the world, Ornstein added, to make a viable case against an employee for violating a social media policy, that policy must be both clear and specific—so it’s essential that employers in all jurisdictions draft them mindfully.