Labor & Employment Law

Employers must fully consider the use and misuse of social media in relation to personnel decisions

A prominent law firm has noted that social media now permeates the entire life cycle of employment: during pre-employment inquiries, throughout the period of employment, and after separation from employment.

Employers must fully consider the use and misuse of social media at each stage. The firm warned that employers that ignore the dangers of social media in the workplace risk legal liability and embarrassment.

The fact that an employee?s writings appear on an Internet profile does not mean that the conduct is private. As the armed forces appellate court has noted, an Internet profile ?is the modern equivalent of standing on a street corner in uniform with a sign saying ?I?m in the Army and I am a racist and Aryan extremist.?? U.S. v. Wilcox, #05-0159, 66 M.J. 442, 2008 CAAF Lexis 1216 (2008).

Public agencies in general, and law enforcement agencies in particular, should have a written policy on social networking, blogging, email and texting. Some of the areas that need to be addressed include the following:

1. A warning that misuse of electronic media will be grounds for disciplinary action, including termination.

2. A prohibition of the use of the agency?s name, logo, patch, badge, marked vehicles and other identifying symbols. Consider registering indicia as official trademarks.

3. A prohibition against posting one?s photograph while wearing the agency?s official uniform (or in a similar attire, which could be misidentified as the official uniform).

4. A ban on the disclosure of the agency?s confidential or proprietary information.

5. A rule that employees must not surf, post, text or blog during duty hours, unless for agency purposes.

6. A prohibition against using agency e-mail addresses to register for or to respond to social media sites.

7. A rule requiring all employees who maintain a blog, or who reply to blogs that identify the agency must identify themselves, and include a disclaimer that their viewpoints are personal, private, and do not necessarily reflect the position of the agency.

8. A policy that encourages employees to voluntarily refer work-related complaints to their supervisors or the [agency?s personnel office] before blogging or posting about such complaints.

9. A prohibition against knowingly or recklessly posting false information about the agency, superiors, coworkers, public officials and others who have a relationship to or with the agency. This should include the wrongful disparagement of fictitious characters that resemble known personnel or officials.

10. Exceptions to the agency?s electronic media policies must be approved, in writing, by the chief of the agency or designated subordinates.

In a 2009 presentation at the IACP annual conference, Orlando attorney Jody Litchford offered ?Policy and practice tips for employers.? See Employment Issues Related to Electronic Communications at pp. 3-4, which is posted on the AELE website.

Litchfored advised that management should encourage employees to ?interact positively? with an employer?s social networking site, and to have policies in place that ensure that the agency?s reputation is enhanced.

The article is posted on the Internet at:
http://www.aele.org/law/2010all04/2010-04MLJ201.pdf

Full post as published by New York Public Personnel Law on May 19, 2010 (boomark / email).