By Allan Maurer
Social media can be a legal landmine for businesses. “We have seen a short list of emerging legal issues and risks arising due to social media that our clients struggle with and have to navigate carefully,” says Poyner Spruill attorney Elizabeth Johnson.
One many wrestle with is the need to monitor risks posed to an organization by employee social media use vs. the privacy of the people they monitor, she says.
“They want to monitor use to make sure employees are not giving away too much business information or causing the company to become a target,” Johnson says. “But their ability to do that is hindered by individual privacy rights.”
Something like a dozen states have introduced legislation to make it illegal for a company to request an employee’s social media log-in information and some have passed the laws, she notes.
That means a company can’t monitor the social posts of an employee using privacy settings and asking for his or her log-in information may be illegal.
Easy to run afoul of NLRB regulations
If the employee posts publicly, employers can still monitor the social media activity, but even then, actions they take might bring down unwanted attention from the National Labor Relations Board (NLRB).
If an employee uses social media to criticize the employer, complaining about salaries being too low, for instance, and the employee has connections to others in the company, the NLRB decided that is no different than if the employees stood around a water cooler complaining about the same thing.
According to the NLRB, they could be organizing, so the activity is protected by their right to form a union. “It’s protected activity the employer can’t stop,” Johnson says.
The NLRB will go after companies on two grounds, she adds. If the company takes action against the employee for talking about the company in social media posts other employees can see, that’s one.
But, even if the company takes no action, the NLRB may come after a firm for something “Nine out of ten lawyers would have thought was safe,” says Johnson. “If you prohibit something protected in your company social media policy, they’ll go after you for the policy.”
So that means the policy can’t prohibit discussing “confidential information about our company,” for instance.
“I wouldn’t take any action against an employee related to his social media activity without consulting a lawyer first,” Johnson says.
Johnson will discuss some of the legal risks associated with social media at TechMedia’s upcoming Raleigh, NC Internet Summit Nov. 6-8. She joins 120 of digital media experts, thought-leaders and speakers from brands including Pando Daily, Twitter, Ancestry.com, Cheezburger Network, AOL, Klout, Bing, Google and the Weather Channel at the event.
Other areas Johnson says can be legally touchy include the matter of social media endorsements. “The Federal Trade Commission (FTC) takes the position that if someone got paid or received something of value, it has to be apparent.”
Yet another area of concern for organizations is who owns a given social media channel such as a Twitter feed and handle.
A prominent case that got a lot of Internet attention in 2011 raised the question when mobile phone site PhoneDog sued a former employee for not relinquishing the @phonedog Twitter account. The company maintained that the Twitter account is a customer list and sued for $350,000 or $2.50 per follower.
It might be best for companies and employees to sign a contract establishing who owns a given social media channel used to promote the organization, Johnson says.
HRComp issued a warning that employers without policies could be vulnerable.
Poyner Spruill has issued a number of alerts regarding NLRB activity regarding social media.
- You can’t say that! Is your social media policy too broad?
- Firms blocking social media access fear security threats and productivity loss
- Are brands too unconcerned about social media opinion?
- 10 tips on writing a business social media policy
- Linkedin dominates social recruiting, dwarfing Facebook, Twitter
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Tags: Elizabeth Johnson, endorsements, Internet Summit, National Labor Relations Board, NC, PhoneDog, Poyner Spruill, Raleigh, regulations, right to organize, social media legal risks, who owns that Twitter account