There is a growing danger in the American workplace for employers and employees alike: Facebook and its brethren. Social media technology is constantly evolving, far more rapidly than privacy jurisprudence—which, comparatively, stumbles along like a decrepit wagon. That is why every employer must have a sound social networking policy, which strikes a balance between protecting employees’ privacy rights and maintaining company integrity. Many employers consider social media a remote cultural trend that has little significance for business. Likewise, the general public tends to think that if it’s on the computer, then it is private. Nothing could be further from the truth. Indeed, modern social media gives new meaning to the phrase: Life and death is in the power of the tongue. Consider the Domino’s Pizza debacle last April. Two employees posted a video on YouTube that showed them violating health codes while preparing food, such as passing gas on sandwiches, and stuffing cheese into their noses. Worse than the video, which garnered millions of viewers, were the comments that traumatized customers posted on Twitter. Because Dominos had no Twitter account to combat the blitz, it was defenseless. Needless to say Dominos opened a Twitter account the next day to address customer concerns.
For this reason, we were given the teeth and the lips as our two guards from slights of the tongue. These protectors must be strong, yet adaptable. Employers need to implement shielding policies, but also promote their business. Bear in mind the purpose of social media is an outreach tool. It enables every employee to be a spokesperson for the company—whether the company likes it or not. Hence, while employers must curb carelessness, it is important not to stifle creativity. A sound policy should make clear to employees that only “public" information, like press releases and marketing materials, may be shared on social media sites—that is, if the company wishes to offer any leeway at all to its employees. And firmly insist that only “public" information may be used on social media sites. Moreover, since social media is constantly evolving, the policy must be broad enough to anticipate future, more dynamic media platforms. For example, Apple will soon release the iPhone 4—enabling video-phone calls—which, in Apple’s words, “Changes everything. Again." If you thought Twitter’s instant text feed was too tempting for American impulsivity, wait until you can upload live video from your mobile device. A robust company policy will restrict the content of what employees can broadcast, rather than the platforms they can use. The result limits what employees can say, but not how they can say it—as not to hamper ingenuity.
Employees may contend that they have a right of privacy, at least as to their own social media. This is not the case since the recent California Court of Appeal decision in Moreno v. Hanford Sentinel, Inc. The Court stated that by posting on Myspace.com, the material on plaintiff Moreno’s profile was provided “to the public at large. Her potential audience was vast." The Court reasoned that Myspace.com is “a hugely popular internet site," and that “no reasonable person would have had an expectation of privacy" regarding postings on the site. Despite whatever settings an employee may have in place, social-networking sites are not private because profiles are available for so many to see. That is why the company policy will extend to both personal and company social networking sites. Still, employers must go a step further. By setting clear parameters of what is permitted on social media as to the workplace, you put the employee on notice. But employees must do more than simply read the policy. Employees should be required to sign off on the fact that they have read and understood the policy. That way, should a lawsuit arise, regarding wrongful termination for example, an employer can point to a signature that attests to the employee’s knowledge of company policy. To that end, the human resources department should also thoroughly explain the policy, and field any queries an employee might have.
Employment / Labor Attorney