Tips For HR On Coping With Social Media

As attorney Kyle Petersen recently observed, it used to be that companies needed to concerned about the items that employees heading to a competitor may have carried out of the building in boxes. Today, they need to be concerned about materials that can find their way to a competitor on a laptop, a flash drive, or through an e-mail attachment. 

In addition to protecting confidential and copyrighted material, employers need to address the dark side of social networking, which can range from supervisors whose "friendings" and recommendations on social media sites can result in employee lawsuits to blog postings that trigger defamation litigation.

These examples numbered among the issues that Petersen and David Stagman, her colleague at Katten Muchin Rosenman, incorporated into their discussion of “Legal Issues in the New Workplace” at MFM’s Media Finance Focus 2010 Conference.

This session focused on establishing a robust HR policy for protecting confidential business information and for reducing risks posed by employees in their use of social media. Here’s a quick summary of their recommendations:

1. Develop clear rules and follow them consistently. For example, studies show that a number of employers are viewing public information posted by job applicants on their social media websites. If a company chooses to incorporate Web searches, it should specify which applicants/positions will be affected, at what stage of the recruitment process the searches will occur and what level or depth of search will be conducted. The attorneys also recommend that the search is conducted by a neutral person rather than someone who will be directly involved in making the decision about a particular candidate.
2. Avoid “recommendations” on social media sites. Tight polices concerning references and recommendations help to limit legal liability. Several court case have ruled against a former employer that provided a positive reference for employees while failing to notify the prospective employer about one or more negative aspects of the individual's performance.
3.  Implement an effective social media policy. “Friending” between employees and supervisors may be OK, but there are potential issues. For example, an employee may fear negative ramifications for failing to accept a supervisor’s invitation. Managers need to avoid posting comments on an employee’s social pages that could appear discriminatory.
4. Avoid anonymous blogging. An effective policy on blogging will require the use of disclaimers on all personal blogs and prohibit anonymous blogging, as well as the use of disrespectful language and disclosing proprietary information about the company.
5. Adhere to copyright restrictions.Companies need to ensure that their sites do not contain any third-party content without permission of the copyright holder. This also applies to art that may appear in a slide presentation that ends up on the Web.
6. Prohibit use of defamatory language. Companies also need to monitor their websites and posting by employees to ensure that they do not contain information that would be defamatory to their competitors and others. Comments concerning a competitor are included among discoverable material for court cases.
7. Protect confidential information.It is imperative for companies to identify the types of information that should be classified as proprietary and develop security procedures for protecting this data. With the ease of removing information from the work premises via portable devices, companies need to clarify their ownership of the devices, restrictions on their use and rules governing their content.
   
   
8. Be clear about confidentiality. Employees shouldn’t have any expectation of privacy with respect to the use of company equipment and networks. This extends to employees that may send messages via their personal e-mail using company-owned equipment and communications systems.
9. Communicate and enforce the policy’s provisions. Companies will also want to make their social media policies an integral part of employee training, including obtaining signatures from employees verifying that they know and understand the provisions. Employees who are leaving the company should be reminded of the confidentiality agreements they have signed.
10. Consult with your legal counsel. These tips are just a starting point for ensuring your HR policies are keeping up with the new workplace. No one understands the unique needs of your business better than your own legal counsel does. They are in the best position to help you identify and avoid the legal pitfalls resulting from our shift toward a ”cloud-based” operating environment.

And you should have those discussions soon. Chubb Group of Insurance Companies, MFM’s endorsed provider of commercial insurance products, reports that a survey conducted by Opinion Research Group in April showed that almost two-thirds (64%) of respondents said that their company has no policy of talking about the company on social networking sites. This information was part of the material Chubb presented to attendees at MFM’s July 2010 CFO Summit. In a session entitled “Social Media and Liability,” panelists expanded upon many of the points made during this session at the MFM annual conference.

Of course, another characteristic of the new workplace is that it’s constantly changing. It is important for us to continually examine these policies and revise them to address the latest developments. In just the relatively few weeks since the MFM conference and CFO Summit sessions, the U.S. Supreme Court ruled on a case (City of Ontario v. Quon,) with a decision that limits the privacy rights of government workers. In addition, the U.S. Seventh Circuit court is in the midst of an Electronic Discovery Pilot Program that will influence the scope of electronic information that it and other courts are likely to include as part of the discovery process for future cases.