Over the last several years, social networking websites like Facebook, MySpace, LinkedIn, and Twitter have evolved to the point where most employees use at least one, if not several, of them throughout each day. Social networking sites provide an easily accessible medium for individuals to stay in contact with friends, colleagues, clients, prospective clients, and the public at large. 

However, unfettered employee access to social networking sites, blogs, and the Internet presents a myriad of problems for employers.

Legal issues and concerns for employers

Employers need to be diligent to protect their company's interests from disclosure or infringement by employees who use social networking sites or blogs. Blogging in particular poses the greatest potential risk for employers and presents the greatest need for employer control.

Employers must also seek to protect confidential and proprietary information vital to their business: business plans, new products or services, customer and client information, financial results (particularly for publicly traded companies and those involved in sale or merger negotiations), and trademarks and service marks. The list of confidential and proprietary information varies by industry and employer, but the need to trust employees and ensure they are maintaining those confidences is common to all employers.

Employers also need to protect their, and their employees', reputation from embarrassing or offensive blog posts or the projection of an image they don't want to be associated with.  

Finally, employers still have an interest in maintaining employee morale and discipline despite the proliferation of employees' use of social networking sites and blogging.  You must ensure that bloggers and social networkers don't challenge the authority, competence, or personal qualities of managers and coworkers or engage in harassment or disparagement of coworkers.

You can face potential liability from employee use of social networking sites or blogging in a variety of ways:

• Slander, defamation, and libel. Your company could be held liable if an employee posts negative statements about another person or a competitor on a website or blog.
  
  
• Trade secrets and intellectual property infringement. The disclosure of certain trade secrets can destroy the "confidential" status of the information, and the disclosure of a third party's confidential information could lead to an action for trade secret misappropriation or intellectual property infringement.
  
  
• Trade libel. Misstatements or misrepresentations about a competitor could lead to claims of trade libel.
  
  
• Securities fraud and gun-jumping. Publicly traded companies can face sanctions for securities fraud if material misrepresentations are posted. Any postings plugging the registered company could violate federal securities law.
  
  
• Employment actions. Employees may try to sue you for wrongful termination or discrimination if their employment is terminated because of postings that reference personal aspects of their life (e.g., marital status or sexual orientation).
  
  
• Harassment. Language that is harassing, discriminatory, threatening, or derogatory could prompt a lawsuit.

Adapting to the new digital media

The rapid growth of social networking and blogging means employers should revisit their electronic communications policies and evaluate whether they are sufficient to cover this new form of media. Because social networking sites present new issues for the workplace, it won't be sufficient to rely on an old e-mail policy in most cases. Your approach to drafting a policy that covers social networking will depend on the benefits, risks, and needs of your company. While some businesses will ban access to all social networking sites, others may find that it's advantageous to allow employees access to certain sites or even to create a company webpage on a social networking site.

Bottom line

Whether your company uses social networking sites or not, you need to be aware that your employees are unquestionably using them. Reexamine your electronic communications policies to protect your confidential information, reputation, and trade secrets and ensure that you've addressed social networking sites and blogs.  That will help protect you against liability and litigation (from both outside and within your organization) resulting from an employee's Internet postings.

Summaries reprinted with permission from the New York Employment Law Letter, written by attorneys at the law firm of Epstein Becker & Green, P.C. Copyright 2009 M. Lee Smith Publishers LLC.

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