Use Employment Contracts to Strengthen Social Networking Policies

The networking and cultivating of business relationships that once occurred over cocktails or during a sociable round of golf now also occur through online social networking sites.  Not only do sites such as LinkedIn, Facebook, and Twitter allow persons to keep in touch with friends and family, they allow employers and employees to keep in touch with clients and offer effective ways to market products.  These benefits, however, are not without risks.

Oftentimes employers are unaware of the information employees are sharing, and though the employee may have only the best of intentions, he or she may be sharing that information with the employer's competitors, government regulators, the employee's coworkers, or prospective customers.

The following situations are illustrative of how the content of an employee's social networking site may create risks or liability exposure for his or her employer:

• "After completing a long, stressful shift, a nurse makes a Facebook status update that inadvertently discloses confidential medical information creating liability for the hospital employing her."
• "An engineer, excited about a recent business development, 'tweets' confidential trade secret information, thereby making that information public and no longer a protectable trade secret for his employer."
• "A salesperson, trying to build professional connections on behalf of her employer, makes social networking connections with all of her customers, thereby making her list of contacts on that site the equivalent of a public customer list that is no longer a protectable trade secret for her employer."
• "A new employee puts up a Facebook post about how great his employer's new product is without disclosing his connection with the employer, and without intending to, simultaneously dunks his new employer in FTC hot water regarding employee endorsements or exposes his new employer to the prospect of false advertising litigation."

One means for reducing the risks of such potential online social networking pitfalls is to establish early and clear guidelines or ground rules for employee behavior by addressing these concerns in employment contracts.  Employment contracts providing some reasonable, workable bounds for employee social networking should serve to lessen risks of liability for employers.

Employers should focus on several categories of information when revamping employment contracts to address online social networking:

• Content:  The employment contract should set forth what information employees are and are not allowed to make public, specifically addressing the importance of avoiding transmission of confidential, defamatory, copyright protected, and potentially sexually harassing material.
• Administrative:  The contract should address the hours when the use of social networking sites is acceptable.
• Disclaimer:  The employment contract should state whether the employee needs to post a disclaimer or make any sort of disclosure.
• Right to Monitor:  The employment contract might reserve the right of the employer to monitor employee use of social media while at work or while using employer‑issued electronic devices.
• Penalties for Breach:  Employment contracts should also address the repercussions of breaching the contract.

Employers must recognize that to minimize business and legal risks associated with their employees' use of online social networking sites, consideration should be given to implementing or revising employment contracts to address permitted and prohibited social networking use.  Likewise, employee training about appropriate social networking do's and don'ts, consistent with the bounds of any employment contract language, should be implemented to further reduce the risks associated with .employee social networking

For more information, viewers may read Jeff Cox and Kelly Rethman's article "Setting expectations: Social networking at work," which was published in the July/August 2011 edition of the Ohio State Bar Association's member magazine, the Ohio Lawyer (Vol. 25, No. 4).