Social Networking Raises Concerns for Employers

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Social networking sites have revolutionized the way people communicate personally and professionally. With more than 200 million subscribers to Facebook and MySpace, it has become commonplace for employees to link with their coworkers, managers and subordinates through a social networking site offering insight into the personal lives of these individuals.

Due to the casual nature of these websites, there is a level of informality in written communications that is rife with pitfalls for employers, often presenting potential morale issues in the workplace, or even worse, legal liability.

One concern is perceived or actual favoritism as a result of a supervisor being connected with a subordinate on Facebook. An employee exposed to offensive material via a communication to or from her manager on a social networking site can provide a breeding ground for myriad yet unresolved legal issues confronting employers today.

For instance, an employer potentially could face liability for discrimination, harassment or defamation based on a manager's communications to employees on a social networking site. This issue is further elevated if the online comments were made during business hours because that could impact productivity concerns.

Employers can ban the use of social networking sites during business hours to address productivity issues, but such a ban most likely will not stop an employee's off-duty social networking. Employers also can impose restrictions on employees' off-duty social networking.

Employers do face some risk, however, if they take adverse action based on off-duty social networking. The National Labor Relations Act, for example, protects employees who engage in "concerted activity," which includes a discussion among co-workers about the terms and conditions of employment.

In addition, a few states - California, Colorado, New York, and North Dakota - have laws that protect employees against adverse action based on their lawful off-duty conduct that does not conflict with the employer's interests. Other states have laws that protect employees against adverse action based on certain types of lawful, off-duty conduct, such as political activity or tobacco use.

Employers should clearly communicate their expectations regarding employee use of the employer's electronic resources, particularly use of social networking sites, blogging and online video. They should also consult with legal counsel to ensure that the policies properly take into account legal rights of employees while protecting employers to the maximum extent possible.

Finally, as this is a rapidly evolving area of the law, employers should have such policies reviewed by legal counsel as frequently as every six to 12 months.