Social Media Misuse in the Workplace Rising, Companies Take Action and Implement Policies


Social media is an increasingly essential tool in today's business environment but as employers are learning, it carries inherent risks. More employers are taking disciplinary action and implementing social media policies to protect themselves against specific risks of social media misuse, according to a new survey by law firm Proskauer Rose.

More than 70% of employers report taking disciplinary action against an employee for misusing social media — a big jump from 35% in 2012. Employers view disciplinary action as a precautionary measure to shield themselves from specific risks, including:

  • Misusing confidential information (80%);
  • Misrepresenting the views of the business (71%);
  • Inappropriate non-business use 67%);
  • Disparaging remarks about the business or employees (64%); and
  • Harassment (64%).

Most employers attempt to prevent these problems by developing an official social media policy. Since last year, the number of companies with social media policies increased from 60% to 80%. More than half of businesses have updated their social media policies within the last year. However, only 38% of employers reinforce these policies with actual social media training sessions — limiting the effectiveness of such policies.

Over a third of the companies surveyed — 36% — attempt to thwart social media problems by blocking specific sites on work devices. Blocking these websites, however, can present other issues such as potentially infringing on employee rights under Section 7 of the National Labor Relations Act (NLRA). Section 7 protects employees' right to engage in "protected concerted activity," including voicing complaints about working conditions.

Attempting to monitor social media use by employees also creates challenges for companies. While there are few laws specifically addressing social media monitoring, developing case law in the majority of jurisdictions seeks to balance an employer’s legitimate interest in protecting its business with an employee’s right to personal privacy.

Data protection considerations also come into play. Where data protection laws exist, they generally limit what information may be monitored, how data can be collected and the ways in which employers can use information gathered by social media surveillance.

Given the variety of ways jurisdictions around the world address social media in the workplace, the survey recommends the following best practices for employers who wish to monitor employees’ use of social networking sites:

  • Implement clear, well-defined and well-communicated policies or contractual provisions concerning the appropriate use of social networking sites and the sanctions for non-compliance;
  • Preferably, have employees explicitly consent to such policies in writing, although in certain jurisdictions — The Netherlands and France, for example — express consent is not sufficient in and of itself to allow monitoring;
  • Monitor no further than is necessary to protect the employer’s business interests;
  • Designate employees to conduct the monitoring and adequately train them on the limits on their activities;
  • Safely store any personal data collected for no longer than necessary and disseminate only as needed;
  • Train management and employees on the correct use of information technology; and
  • Document any specific incidents involving the misuse of social media sites by employees.

Businesses that fail to address social media misuse by their employees face potential risks including damage to their reputation, the loss of confidential information, insider trading, defamation, antitrust violations and harassment.

At the same time, employers need to carefully craft social media policies that won't attract the scrutiny of the courts and/or regulators by infringing on protected rights.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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