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Your Employees and Social Media – Can You Read Their Online Activity? Worse, Could You Be Liable for It? Why Your Business Needs a Social Media Policy for Employees

Depending on the nature of your business, your employees may routinely handle or have access to information that is subject to privacy protection or financial/securities regulations under various federal and state laws. Improper handling or disclosure of statutorily-protected or otherwise private information could potentially result in (1) statutory and privacy violations and (2) civil liability exposure for your business generally and for your employees individually.

Even businesses that do not handle sensitive information must consider the impact of employees’ use of social media – posts can go viral within seconds. And once content is posted on the Internet, it is very challenging, if not impossible, to remove. For these reasons, it is essential that every employee be aware of and educated about these potential legal risks when posting content on social media sites-even when they do so on their own time.

Thoughtless or unthinking social media mistakes can create ethical dilemmas and embarrass both a business and its employees. And consider the potential legal claims that may arise from employee social media misuse:

• invasion of privacy • violations of HIPPA • defamation • violation of consumer protection laws • infringement of intellectual property • antitrust violations • disclosure of trade secrets

To prevent these potential harms and avoid hundreds of thousands of dollars in legal fees, all businesses should adopt and institute an employee social media policy to protect the business, its customers, and its employees. A clear, concise, employee-signed social media policy can strongly help to protect against social media-related cyber-risks and can do so without violating an employee’s right to free speech.

What should a workplace social media policy address? It should cover the following:

1. Social media use in the workplace –is it permitted during business hours?
2. The company’s rules to maintain the privacy of customers, employees, and the privacy of others – Employees should always refrain from sharing personal information (including photographs) of co-workers unless they have express written consent to do so; and employees should never comment on social media about any customer.
3. The employee’s responsibility to be truthful in social media activity.
4. Make it clear who is posting the content – employees should never hold themselves out as representatives of the company unless they do so with explicit company permission.
5. Violations of obscenity and child pornography laws – A business should always reserve the right to terminate immediately any employee that uses social media or the Internet at any place and at any time in such a manner that violates any federal or state law concerning obscenity or child pornography.
6. Violation of copyright and trademark laws – This conduct is illegal and unacceptable.
7. Liability for misuse of social media – the business should make it clear that it is not liable for any misuse of social media by its employees.
8. Disclosure of proprietary and confidential information – it should never be disclosed on a social media platform.
9. Respect others – whether or not an employee is speaking on behalf of the business, he or she may still be seen as a representative to the general public and should act accordingly.
10. Employee acknowledgment, notice and consent – every employee should read, fully understand and acknowledge in writing that he or she is aware of and consents to the terms of the workplace Social Media Policy.
11. A business should reserve the right to view employees’ publically posted social media activities in which the employee maintains no reasonable expectation of privacy under the laws of the state in which the business operates. Because state laws vary, however, businesses should seek legal counsel to determine their right to do so.
12. Consequences for misuse of social media — Set forth what those consequences are.

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