Best Practices for Social Media in the Workplace

Personnel Practices

by Matthew R. Plain, Esq. & Kristen M. Whittle, Esq.

More than a decade after the birth of modern social media, it is now ubiquitous in all aspects of society.  According to surveys from statista.com, Twitter averaged 304 million monthly active users in the second quarter of 2015, and Facebook averaged nearly 1.5 billion monthly active users worldwide.  We are often asked by employers what the law requires with respect to social media in the workplace.  Although Rhode Island recently passed a law prohibiting employers from requiring employees to share their personal social media passwords and to connect with the employer on social media, there are many other issues concerning social media that remain unaddressed by statutes, regulations, and case law.  Given the relatively recent development of social media, this is an evolving area of the law—and one where we can expect the General Assembly and the Courts to make further changes to the law going forward.

For now, as a best practice, employers should implement a policy addressing the use of social media in the workplace.  The policy should be designed to supplement and apply in conjunction with other employment policies concerning, for example, confidentiality and harassment in the workplace.

Social media policies SHOULD include:

• A prohibition on personal use of social media in the workplace. Best practice dictates prohibiting employees from using company computers, networks, and servers to access their own personal social media accounts for non-work-related purposes during the workday. Aside from the loss of productivity that the use of social media can cause, if an employee were to use social media for improper or illegal means, the employer could potentially be vicariously liable for conduct committed on its equipment during working hours.
• A statement that any activity conducted on employer-owned equipment or networks is subject to monitoring by the employer and that the employee should have no expectation of privacy with respect to any information shared on the employer’s equipment or networks. In the event that the employer needs to investigate allegations of misconduct, that statement may streamline the process by which the employer can access the electronic information.
• Guidelines for employees’ interactions with clients on social media. For example, medical offices, educational institutions, and social service agencies may seek to prohibit employees from connecting on social media with current patients, students, or clients due in part to heightened privacy requirements in those fields.

Social media policies should NOT include:

• A requirement that employees share their personal password with the employer or connect with the supervisor or company on their own personal social media pages. Rhode Island recently passed a law prohibiting these practices, which may be considered an invasion of the employees’ privacy.
• Overbroad prohibitions on the employees’ speech. Although the policy may prohibit employees from speaking on behalf of the company without prior authorization, it should not go so far as to prohibit employees from discussing the terms and conditions of the workplace, which is considered protected speech by the National Labor Relations Board.

In addition, employers should carefully protect their company’s social media accounts.  Specifically, employers should designate a few key people to manage your company’s social media pages, and require them to share the passwords with management.  In the event that your social media manager(s) leave the company, you should retain access to the company’s social media accounts.  Change the password immediately after that employee’s separation from the company.  The potential risks of having a non-employee (or worse—a recently-terminated employee) with access to your company’s social media sites are significant.

Matthew R. Plain, Esq. Partner, Barton Gilman LLP

Kristen M. Whittle, Esq. Associate, Barton Gilman LLP

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