In Your Face(book)! Managing Employee Internet Use
By Kurt Barker, Jon Napier and Ron Roome
Like it or not, the increasing popularity of social networking sites (i.e., Facebook, MySpace, Twitter, etc.) has found its way into the workplace. In addition to employees surfing the web for personal use (and sometimes personal gain), employers now need to be concerned about what employees are saying online. Social networking, personal blogs and other websites offer platforms for employees to say and post anything they want, whenever they want—even things that could be damaging to your business.
Face Reality
Social networking is not just a Generation Y phenomenon.
Inside Facebook recently reported that the fastest growing
demographic on Facebook is women over the age of 55. And
it’s all too easy to locate a host of alarming statistics
about employee internet use, suggesting that personal internet
use while on the clock is a virtual epidemic.
What does this mean for the workplace? In addition to the loss in productivity, information employees are creating and sharing can be harmful, especially if the employee is venting frustrations about their workplace, boss, or co-workers. These messages are often sent instantly to hundreds if not thousands of recipients, making the accidental ‘reply all’ email mistake seem like a quaint and harmless blunder in comparison.
Know Your Rights
Too many workers claim their employer does not have an
internet policy or that they do not know what it is.
It’s time to dust off that employee manual. If you
don’t have an internet policy – now is the time to
create one. Oregon law adopts the “at-will”
employment doctrine, and generally allows actions against
employees based on their online activities, on or off
duty. The best practice is for employers, however, is to
put their policies in writing and clearly communicate them to
all employees. And many statutes or other laws create
exceptions to an employer’s right to take action based on
internet activities.
Consider whether the employee had a reasonable expectation of
privacy for their online activities. What if the activity
in question took place at home, but still reached thousands of
viewers? The extent of an employee’s ability to sue
for invasion of privacy depends on the circumstances, and our
courts are still grappling with privacy issues
online—consult your lawyer if privacy issues arise.
The right to free speech, however, applies in government
workplaces, and private companies are not subject to the same
restrictions.
Watch out for whistleblower and other anti-retaliation
statutes. If your employee makes a good-faith complaint
online about illegal activity in the workplace and you let them
go, you may face a lawsuit. Discrimination and harassment
statutes can apply; too, especially where online
“harassment” based on an illegal factor (race,
gender, etc.) has an effect on the workplace. Our labor
laws protect employees who engage in “concerted
activity”—generally speaking, union organizing or
complaining together about working conditions—even in a
non-union workplace. Some other states even have
“off-duty conduct” statutes, further restricting
employer action.
Finally, more and more employers screen new hires by looking at online activity. But beware of the pitfalls. For example, if you learn of an employee’s protected characteristic online (such as religion or disability—information you generally shouldn’t seek in an interview) and refuse to hire, the information you learned may be used against you in a discrimination lawsuit.
Speak Up
You decided to implement an internet or social
networking policy—now what? There are a number of
issues to consider. For example, tell employees not to
reveal confidential, proprietary, financial, or other sensitive
company information. Effective policies should also
protect against unauthorized use of company logos and
images—you don’t want an employee creating the
appearance that their views are those of the company. In
short, consider banning any conduct that creates a conflict of
interest, violates your policies, or otherwise harms your
business interests. The policy should also include a warning
regarding possible disciplinary action if the employee violates
it.
Like all policies, internet use and social networking policies are not “one size fits all.” When working with counsel to craft a policy and protect your company, consider the downsides of “over-regulating” employees and damaging morale.
Also remember that, when all is said and done, the employer’s computers, electronic media, etc. are its property and can generally be monitored to ensure proper use. To avoid any misplaced expectation of privacy, include specific provisions in your policies notifying employees that the company retains the right to monitor those systems and review activity at any time.
This article is for informational purposes only, and does not contain legal advice. Please consult with your lawyer for advice, or for a legal opinion about specific facts or circumstances.