Managing Social Networking Risks

JUL-AUG 2013|BY STATHIS MIHOS, LEGAL DIRECTOR, PFIZER HELLAS S.A.1, MEMBER OF THE LABOR AND INSURANCE COMMITTEE OF THE CHAMBER
For those of you that were not away from planet earth during the last decade, I probably do not need to explain the importance of social networks

For those of you that were not away from planet earth during the last decade, I probably do not need to explain the importance of social networks. You certainly have also noticed that the use of social networks has exploded in recent years. Facebook has surpassed the mark of one billion users; as is often mentioned, if Facebook was a country, it would be the world’s third most populated one, behind China and India.

For businesses, the use of social networks is a double-edged sword, as it can have both favorable and unfavorable consequences. On the one hand, social networking is a great way to:

  • Create brand awareness
  • Manage online reputation
  • Recruit talent
  • Learn about technologies and competitors
  • Intercept potential prospects

On the other hand, the use of social networks gives rise to a lot of worries for employers:

  • Liability
  • Security issues (For example, the 2008 Koobface worm—the name is an anagram of the word ‘Facebook’)
  • Leaking of trade secrets
  • Decrease in productivity
  • Copyright or trademark infringement
  • Unauthorized use of client names or other info
  • Creation of an unproductive workplace environment
  • Corporate espionage

A significant and growing number of incidents involving misuse of social networks—creating tensions between employers and employees—have been recorded in recent years. Thousands of incidents have been reported in which employees were fired for activity on social networks, usually for posting unflattering comments about managers or customers or spending too much time visiting social networks and neglecting their duties and clients. (An amusing case: One employee who was fired after posting a video on YouTube of himself and two of his colleagues play fighting with plastic bags in the company warehouse won the dismissal case in court because the video had only received eight hits!)

The problems with social networks start even before an employee is hired, during the selection process. Employers use information posted by the applicants themselves in order to find out whether an applicant has been involved in illegal activities, or to discover incidents of poor work ethic, including hostile feelings about previous employer and discriminatory tendencies. Employers also use social networks to check the quality of the applicant’s writing or communications skills and to evaluate the applicant’s judgment in maintaining his or her public online persona. Yet these employers also run the risk of being held liable if found to have violated, in a hiring decision, anti-discrimination in the workplace laws related to use of criteria such as race, age, disability, religion, and sexual orientation.

During employment, the most pressing issue regarding use of social networks in the workplace is whether or not to allow it and, if not, how to implement such ban.

But problems relating to social networks do not end when an employee leaves work. Supervisors and co-workers are increasingly asked to ‘recommend’ former employees on LinkedIn after separation from employment.

So, is the networked workplace in trouble? And what is an employer to do? According to recent research2:

  • 36% of employers monitor usage of social media sites
  • About one-third of businesses have had to take disciplinary action against an employee for misuse of social media
  • Just over one-quarter of abuse was by former, rather than current, employees
  • 40% of employers consider it an advantage to allow employees to use social media for both business and non-business use
  • Just over one-quarter of employers block employee access to social media
  • Only about one-third of employers currently provide training on appropriate use of social media
  • 31% of employers do not have dedicated social media policies

However, the employment relationship, by its nature, flourishes when the rules that govern it are clear, precise and respected. To this end it is recommended that employers have in place a social networks risk mitigation policy and program. The employer may use the policy in addition to other company policies, to address issues relating to social networks. Specifically, an employer should:

1. Consider the scope of the policy

  • Check local legislation provisions when operating in more than one country.
  • Check under what conditions it might be permitted to monitor social networking use in or out of the workplace.
  • Consider restriction of social networks use during working hours or on employer-issued devices or when employer’s network is used.
  • Consider using the least intrusive methods (blocking access to social network sites).
  • Set rules for use of social networking sites outside of the workplace (especially for work-related purposes) or when private IT devices are used.
  • Check if there is an obligation to provide employees with other communication tools to access social networks.
  • Check if involvement of Works Councils or employee consent is required in adopting policies on social networks use.
  • Consider using post-termination provisions against misuse of social media by former employees.

2. Consider the content of the policy

  • Regulate the use of company email addresses to register with a social network.
  • Regulate the use of company logos or trademarks in postings.
  • Make clear to employees if they need to disclose (identity/affiliation) and use disclaimers (not my employer views) when using social networks.
  • Give guidelines on friend requests by colleagues or managers.
  • Explain the permissible use of information concerning the business, employees and clients, and the prohibitions on communication of confidential and proprietary information and disparagement of competitors, employees and clients.
  • Adopt social media policies that are specific rather than impose across-the-board prohibitions.
  • Make sure managers understand the perils of “recommending” or commenting on the job performance of former employees via social media without prior specific authorization.
  • Be careful so as not to violate legal provisions related to trade union rights.

3. Consider the enforcement of the policy

  • Check under what conditions monitoring of social networks may be permissible and especially regarding their use by employees.
  • Adopt clear procedures for monitoring and enforcing policies and activities, to the extent allowed by legislation.
  • Explain the sanctions when the rules on social networks are violated.
  • When taking disciplinary action against an employee or when making hiring decisions, check whether it is permissible to refer to social networking sites or use evidence of such violations, especially if obtained without employee’s consent.
  • Be reasonable when deciding on the appropriate sanction to impose.
  • Don’t exclude the possibility that a posting might be inaccurate, out-of-date, not intended to be taken at face value, or even posted by someone other than the person who is supposed to have posted it.
  • Above all, verify that all employees are aware of the policy and have attended relevant training sessions.

Just be careful about one thing: your policy should not try to cover individually mention  all forms of social networks, as it would run the risk of being outdated by the time it was adopted!

1 The views expressed are personal

2 Proskauer 2012 Survey: Social Networks in the Workplace Around the World 2.0

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