Uncharted Territory

» Posted on Aug 25, 2011 in Mitigating Liability, Newsletters, Performance | 1 comment

The worldwide web was made available to the public thirty years ago. In 1997, the first social network site, Six Degrees.com was launched. LinkedIn and MySpace launched in 2003. Facebook finally opened to everyone in 2006, along with Twitter.

The term Social Media is frequently used narrowly to describe activity on Social Network Sites. Social Network Sites are web -based services that allow people to construct a personal or professional profile, develop a list of other users with whom they share a connection, and view and interact with their connections and others’ connections. It’s email on steroids.

A survey conducted by FaceTime found 82% of employees use social sites while at work for personal reasons and 27% are not aware of whether a policy exists governing the activity. More disturbing statistics include 27% do not consider ethical consequences of posting; 37% do not consider what their boss or colleagues would think; 34% do not consider what their clients think about their posts.

This relatively new communication tool has enormous potential for company branding, marketing, selling and training. It also carries tremendous risks. Cyber Liability policies cover a wide range of related hazards such as, personal injury, trademark and patent infringement, identity theft and viruses.

Most employers have a social media policy in place that parallels existing employee prohibitions such as discrimination, releasing trade secrets and other confidential information. Employers must determine their position on social media.

  • Will the company allow, limit or restrict workday access?
  • Will the company limit off-duty communications?
  • Will the company use or prohibit social media when recruiting or conducting employee investigations?


  • Employees must be trained to abide by the policies constructed from the employer’s position. A survey conducted by Robert Haft in 2009 revealed 54% ban all workday use of social media; 19% allow business use; 16% allow limited personal use and 10 percent allow full access.

    Employers are limited in their control over employees’ use of social media by Section 7 of the National Labor Relations Act, infringement on privacy rights, First Amendment Rights and whistle-blower rights. However, employers do have the right to expect employees to be engaged in work activity while being compensated. An astounding amount of time can be wasted on Social Notworking. This may be the biggest employer risk of all. At the same time, social networking can be a work tool, like email.

    Employers need to educate employees about social media. Help employees understand how it works and the difference between public and private settings. Teach them that, like email, the information that is sent, can never be retrieved or removed. Do not assume employees understand social media. Employers should discuss social media risks in discrimination training and computer security training, as well as orientation.


    The Internet is your permanent record.

    1. Be nice, honest and respectful.
    2. Don’t reveal private information.
    3. Understand and set your privacy and security settings.




    Legislative Update



    NLRB Issues Social Media Report

    Lafe Solomon, Acting General Counsel of the National Labor Relations Board issued a report August 22, 2011 presenting recent cases arising from the use of social media. The cases he discussed had mixed findings. Below are a few cases which may assist employers in refining and administering policies.

    Employees Facebook postings about job performance and staffing were protected concerted activity.

    Internet and blogging standards were unlawful. The policy prohibited employees from posting pictures of themselves which depict the company in any way, including company uniforms. It was unlawful since it would prohibit a picture of an employee carrying a picket sign depicting the company’s name or protesting work conditions.

    Employee’s Facebook postings were part of protected concerted activity related to concerns over commissions.

    Employee who posted offensive tweets was not engaged in protected concerted activity. Though the newspaper did not have a social media policy, the Human Resource Director had dialogues with the employee who continued to tweet. NLRB found that the tweets were not protected because they did not relate to the conditions of employment or seek to involve other employees.

    Employee’s Facebook posting about manager were individual gripes, not concerted activity. Though co-workers made supportive comments about the employee’s complaints about his manager, the NLRB found no evidence that the employee tried to initiate any group action.



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    • Theresa

      Nora, All great information. Many of my clients continue to ask me for information around this topic. I will forward on your newsletter.