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| Matthew Deffebach |
[Editor’s note: This article is the third in a four-part series on social media. Previous articles are “Blocking Employee Use of Social Media? It’s Time to Rethink Why” and “Social Media Policy a Must-Have in 2012.”]
Your company is among the growing number that has embraced social media and outlined benefits for its use in the workplace. Better yet, it has taken the next step and has developed a social media policy.
This is done not only to outline the company’s expectations for using social media so it can reap the benefits while avoiding potential pitfalls, but to ensure proper documentation is in place. That documentation will, among other things, help reduce exposure to potential liability that may arise from cases where your company has to discipline or terminate employees for inappropriate social media use.
With any policy, there will be people who follow it and people who don’t. And while previous articles in this series have assumed employees, given the opportunity to use social media in the workplace, would use good judgment, we don’t live in a perfect world.
When it comes to monitoring employee social media use and, in turn, compliance with your policies, companies are generally governed by the Electronic Communications Privacy Act (ECPA), passed in 1986. The courts struggle with interpreting this outdated law because of the explosion in the types of electronic communication that have launched since the passage of the act. Questions have arisen about what companies can and cannot do to monitor employee use of electronic communication.
For example, the very convoluted terms within the law make it hard for employers to understand whether they are the provider of the platform at issue. Is the company at risk because it owns the servers? Or is it AOL or Microsoft that supports the communication? Failing to address the nuances of the ECPA can be costly as the law generally prohibits companies from intercepting electronic communications, whether in the form of e-mails, electronic posts or other means for communicating in social media.
As an employer, the way to deal with these highly technical court actions is to embrace the silver bullet that allows a company to monitor employee use—proper consent.
Making sure your company is covered is a relatively simple fix, because no matter the form of monitoring, an employer can monitor electronic communications if the employee has provided his or her consent. As the devil is in the details, this is a step where companies often seek counsel to ensure that what they are actually monitoring is appropriately covered by their employees’ consents.
Companies must realize the old standard handbook they have had for years may be out of date regarding social media. It is important to make sure employee consent is broad enough to capture the things that could take place on company-provided equipment so employees can understand what can be captured.
The policy should be fluid and grow with the technology. For example, the policy could state: “The company can monitor e-mail, social media or any electronic communication, including forms of communication not yet developed.” This way a company is covered for new technological advancements the world does not know about today, such as developments in the Internet cloud.
Employers should be creative about presenting the policy to employees for their consent. Make it easy to do. There are clever ways to present it to employees so not to look like “big brother.” A disclaimer could appear on employee computer log-in screens, for instance. Logging in would constitute consent that way. Or it can be sent in an e-mail.
It comes down to the employer and the fact that companies cannot have unauthorized inception of employee communications. And while it may seem like a daunting task, having a well-written social media policy that provides employees the opportunity to give consent is not a significant exercise in light of the peace of mind you get in return
Matthew Deffebach is a partner in the Labor and Employment Practice in the Houston office Haynes and Boone, LLP. He is also a member of the firm’s new Social Media Practice. He can be reached at [email protected].