Online social media is changing the way people communicate. It's also blurring the line between work and play as more employees log on to networking sites like Facebook and Twitter, while they're both on and off the clock.
These days, employers are finding it increasingly difficult to limit or stop employees from using social media at work because a growing number of companies use the same sites to promote their products and services. And that's creating some unique legal challenges in areas from privacy to employment, said outside and in-house counsel at a panel discussion Tuesday titled "The Virtual Water Cooler," held at the 22nd Annual General Counsel Conference in New York.
So they gave their fellow in-house counsel some suggestions from their own experience about how to make sure employees aren't wasting company time or revealing trade secrets online — without violating their legal rights or limiting their freedom of expression.
In-house lawyers for both The Coca-Cola Company and Sprint Nextel said their companies don't limit what employees can do online and they don't monitor employees individually. Coke, for example, just keeps track of which sites are used most frequently companywide. It relies on managers to inform the legal department when an employee is suspected of violating a code of conduct online.
"You would have to employ armies of people to watch what individual people are doing," said Coke's senior litigation and employment counsel, Elizabeth Finn Johnson.
Sprint also gives its employees a lot of latitude when it comes to social media, said in-house counsel Kirk Salzmann. In fact, it has an internal program called the "Social Media Ninja," which encourages employees to become regular promoters of the company on social media sites. "Sprint is becoming a little more sophisticated," he said.
But there are still many legal risks associated with the use of social media, particularly when it comes to hiring, they said. The panelists discouraged companies from systematically using Facebook to weed through potential job candidates. The company could be accused of age, race, or religious discrimination later on. "We pretty much decided not to do it because of that kind of risk," Johnson said.
Elise Bloom, a partner at Proskauer Rose, said that if companies want to do it, they should have one group of people cull the sites for information, and then turn over only relevant information to the people doing the hiring. "There's not going to be a perfect solution," she said.
It can also be a problem when an employee uses a company-sponsored site to post negative comments or reveal confidential information. Employers could be liable for defamatory statements made by an employee, if the person had the authority to speak on the company's behalf.
Salzmann said he's frequently dealt with that issue. Someone in the executive office will see a comment on a web site or blog, and they want it taken down.
"But it sort of ties your hands," he said. "Depending on what's being said, there may not be a lot you can do."
Then there's the privacy issue. Some may think that if their company has a policy saying employees have no expectation of privacy when using company e-mail or cell phones, they don't have a problem.
Not exactly, said Jonathan Wilan, a partner at Hunton & Williams. The Supreme Court has agreed to hear a Federal appeals court case from California that may lay the groundwork for determining whether an employee can expect privacy when communicating from a work computer, cell phone, or other work-issued property.
"The courts are starting to look at the gray areas a little bit about what the reasonable expectation of privacy might be."
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