Social Media – Risks and Rewards, even for the Military

Submitted by Kevin Cronin on Tue, 08/04/2009 - 14:22.

The US Marine Corps decision to ban social media, citing concerns for operation and mission security, is an issue every employer wrestles with, but banning social media is on excessive response, one that forfeits important value for social media, including military recruiting.  Employers, military or otherwise, should develop fine-tuned policies on social media, not comprehensive bans or unqualified endorsements. 

Personal blogging is huge, any citation of stats about blogging and blog growth, risks being out of date, almost as soon as the citation is public.  At one point, approximately 75 million blogs were created daily, that's one new blog every second of every day, and there are about 1.2 million new blogs created each day, or about 50,000 per hour.   

While employee blogging and social media has benefits, let's first review some real risks that warrant employer's attention and how to go about protecting them in a reasonable, common-sense manner.

Happy employees are stable, productive employees, so why not let them write to their hearts content, about whatever is on their minds? After all, the employer may benefit:

  • Getting the firm's name out there in the blogospere;
  • Receiving some free company promotion;
  • Advancing industry discussion;
  • Creating additional ways in which clients or information can find their way to the company; and
  • Generating a reputation for employing smart, leading edge people with expertise in their industry.


First off, employers should have their own blogs, posting information and articles about the business, the industry or other ways to promote the business.   

The concern of the day is addressing the businesses interest in the private, individual blogs of employees and some of the potential legal issues presented for employers. 

Remember, Ohio law characterizes employment as “at will,” empowering employers to fire for good, bad or no reason at all (as long as it's not for protected conduct, like whistle-blowing, reporting fraud/assisting criminal enforcement, union activity or violates federal/state discrimination laws). 

Dangers Raised by Employee Blogs:     

  • Lawsuits Asserting Defamation. Defamation claims can develop from employee maintained blogs and can pose a risk to employers. Just as an employer can be held liable for defamatory statements of its employees, an employer may also be liable for an employee's defamatory private blog on topics that are within the scope of the employee's employment or within the employee's actual or apparent authority.  Even if employee statements are outside the scope of employment, an employer may be liable if the blogging employee is the supervisor of the defamed individual or the employee's blog references the employer. The prevalence of anonymous blogging increases the employer risk, if they are the only traceable source of the defamatory blog. 
  • Lawsuits Involving Harassment.  Employer liability for sexual harassment or the creation/tolerance of a hostile work environment can result from private blogging, if a supervisor writes inappropriate comments about an employee or if the employer knows that an employee blogged harassing material about a co-employee. 
  • Economic Loss. Your business is at risk, due to defamatory comments on private blogs. Employees can anonymously defame employers, supervisors or co-workers, undermining employee morale, lost reputation or good will damaging sales or potential contracts.
  • Loss Due to Release/Disclosure of Confidential Information. Private blogging may also lead, unwittingly or intentionally, to the public release of company information. Any blog that discusses an employer's confidential, business or financial information can be very damaging by helping the competition or generate legal liability as a privacy or securities law violations.  That's the sort of information that, if released, should only be released on your terms, through your PR channels. 

SO EMPLOYERS HAVE AN INTEREST TO PROTECT FROM
EMPLOYEE SOCIAL MEDIA. WHAT TO DO?

  • If you don't have one already in place, employers should prepare an electronic media policy for the business, including social media.  Employers should disseminate policy in writing and via email, post the policy and make it part of your employee handbook or manual. 
  • By adopting policies addressing private blogs, you are putting employees on notice of the standards of conduct that apply, that their conduct may be monitored and can be the basis of employer disciplinary action. The policies should be provided to employees when hired and periodically thereafter and applied consistently.
  • Include the policy in any employee training or education sessions.
  • Companies should hire a monitoring service, to review when the company or industry is referenced online.
  • A company cannot discipline that individual if the blog content is a protected activity (e.g., union organization, “whistle blowing of fraud/criminal acts; complaints of discriminatory conduct, etc.).

Policy Point One: Personal employee blogging during working hours is a diversion from an employee's work responsibilities and should be prohibited or kept to a minimum.  Most personal blogging is precisely that – personal, and should be addressed away from the office on personal time. 

  • Employees need to be aware that some private blogging is prohibited (for instance, political campaign work during the work day, which might suggest prohibited corporate support for a political campaign activity). 
  • Some internet activity that may be permitted in the privacy of an individual's home with their own computer (including pornography), is absolutely prohibited at work or with work computers.
  • Excessive personal social media activity, while at work, can be the basis of discipline or dismissal.

Policy Point Two: The employer has very real concerns about the private blogs, chat room activities, tweets and the like, of employees, even during off hours.  The employer policy should address the following points:

  • Employees must be absolutely clear that views expressed in blogs and social media are the employees’ alone and do not represent the views of the employer. The employee statements are opinions and personal statements, not statements of purported fact.
  • Remind employees why you, as an employer, care about their personal blogging practices. All employees need to be dedicated to advancing the company.  Everyone is an advocate and representative of the company. Tell employees about risks of confidentiality, data loss or harming others and the impact can be severe or ruinous to the company.
  • Tell employees that in any communications (social media included), employees are expected to treat the company and its employees, customers and competitors with respect.  Employees are also responsible in advancing the company and their comments, even in a private blog, can be important.
  • Some work topics should be identified as “off limits,” to protect processes and trade secrets and other confidential or proprietary information.  Here are some specific cautionary items:

m No unauthorized disclosure of trade secrets, trademark, copyright or other confidential, proprietary non-public information;

m No unauthorized use of the company name, logo, or slogans;

m No disparaging, threatening, harassing or other inappropriate content about the company or its employees;

m A statement that the views expressed are those of the author and not the company's.  The blog should carry a tag line that the individual is responsible for the content of the blog, including any actual or alleged violation of laws, including  privacy, confidentiality, trade secret and copyright provisions;

m Blogs and social media are subject to the company's electronic data communication policies and may be monitored by the company.  Violation of the policy may subject the employee to disciplinary action, up to and including termination.

Timely

  Thank you Kevin for this needed reminder.  We all must tread carefully with this new media.  Most consider it a positive empowering tool for exercising our rights, but it also comes with responsibiilities.  It's not easy living in a democracy.