We have all seen the headlines about social media sites such as Twitter, MySpace and Facebook becoming integral parts of the social and professional lives of most of today’s work force.

As these sites continue to move toward becoming indispensable business tools for employees and employers, it becomes imperative for businesses to examine their potential risks and to safeguard against those risks.

For example, searching social media sites can reveal attitudes and/or behaviors in applicants or current employees that do not fit well with an employer’s core values. In addition, poor conduct or other indicators that represent potential liability for employers could be the deciding factor when it comes to hiring.

However, many laws protect applicants and employees, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Electronic Communications Privacy Act, the Stored Communications Act, the National Labor Relations Act, the Fair Credit Reporting Act and the Federal Trade Commission Regulations.

This means that employers must be cautious about how they gather and use the information from social media sites.

A case in point: Facebook and MySpace profiles often contain information about an applicant’s age, race, religion, disability, sexual orientation and other protected categories. Considering that an important defense for any failure-to-hire claim is ignorance of the protected characteristic, having access to this information through social media sites could certainly jeopardize an employer’s defense.

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Employee blogs and negative postings can cause economic or reputational harm to a business; therefore, employers who regularly monitor the Internet can prevent disclosure of confidential and proprietary information or negative public relations.

However, since employees are protected by the Electronic Communications Privacy Act, the Stored Communications Act and other laws that shield employee privacy, employers must be careful about how they access information.

In a recent case, employees set up a password-protected blog to complain about management. The employer asked another employee with access to the blog to give up her password, and when management took action against employees based on the blog content, the employees sued and won.

This is just one example of the two sides of the social media coin and a compelling reason employers should establish a social media policy. It is impossible to anticipate every circumstance, but these 10 components should be an integral part of every social media policy:

1. Inform employees that online sites are in the public domain, and off-duty actions can result in discharge.

2. Prohibit distribution of confidential or proprietary business information.

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3. Prohibit defamation and fraud.

4. Prohibit harassment of and discrimination against co-workers.

5. Prohibit illegal conduct such as trademark infringement or unlawful solicitation.

6. Prohibit references to customers.

7. Require compliance with and be consistent when enforcing the policy.

8. Inform employees that they have no expectation of privacy in any document or communication created, sent or received using company equipment or technology.

9. Prohibit posting of pictures or videos of company events, activities or facilities.

10. Prohibit managers from “friending,” “liking,” endorsing or recommending subordinates.

Social media appear to be here to stay, and while the names and formats will change, the flow of information will likely increase. Savvy employers will do well to stay ahead of the technology curve – and out of legal trouble.


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