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Monitoring, Regulating, and Disciplining Employees Using Social Media

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Monitoring employee use of social media makes sound business sense, but companies need to keep limits in mind, particularly as they relate to employees' privacy rights under both federal and state law. Robert McHale provides some guidelines to keep in mind when developing your company's policies.
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Social media has been aptly described as a double-edged sword for employers. Despite the obvious work-related benefits, employee use of social media is not without considerable risk. Employees can inadvertently disclose sensitive company information or trade secrets (for example, posting to Facebook about a pending business deal, launch and release dates, or contemplated reorganizations); post wrong or improper company information on social media sites, and thereby dilute the company’s control over its own brand and content; send inappropriate messages of a romantic or sexual nature to co-workers, subjecting the employer to a discrimination or harassment lawsuit; compromise the company’s data through viruses, malware, and other data security risks; or publicly disparage the employer and its products or services, or suppliers and competitors, and thereby damage the employer’s reputation and goodwill.

Given the high potential for damage to an employer’s business that can arise from an employee’s irresponsible use of social media, employers are increasingly monitoring and disciplining workers over such misuse. Such activities, although primarily motivated by sound business-related reasons, are nonetheless subject to legal scrutiny, putting employers at risk of monetary fines, reinstatement of terminated employees, payment of lost wages, and other damages.

Monitoring employee use of social media makes sound business sense, but companies need to keep limits in mind, particularly as they relate to employee’s privacy rights under both federal and state law.

Further, when it comes to mitigating your company’s social media risks, employee monitoring alone is not enough. Here, an ounce of prevention is really worth a pound of cure. Arming employees with social media training and best practices (see Figure below) will not only reduce your company’s legal risks, but also increase the effectiveness of your company’s social media programs and initiatives. Employee social media training therefore makes sense from both a return-on-investment and a legal-compliance perspective.

Figure 1, continued Click to enlarge

The contents of this article are derived from Chapter 4: Monitoring, Regulating, and Disciplining Employees Using Social Media, from Navigating Social Media Legal Risks: Safeguarding Your Business. The article is also part of a series in which author and attorney, Robert McHale, provides practical Social Media Dos and Don'ts for companies to consider when using social media for business.

Robert McHale, Esq. is the founding partner of R | McHale Law, a full-service law firm whose corporate practice represents clients on a wide variety of IT and intellectual property law matters, including privacy and data security, copyright, trademark, licensing, and other proprietary protections. He may be contacted at: robert.mchale@rmchale.com.

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