Keep an Eye on Employee Texting, Blogging, Twittering and More

BDP8ZAPF2ZEmployers naturally want to provide employees with the tools that enable them to do their jobs more quickly and efficiently.  But there are growing concerns in the business community about employees who use technology in ways that can harm their employers.

During the work day and after hours, your staff members undoubtedly use cell phones and other mobile devices.  They may post confidential information on social media websites, write their thoughts about colleagues on blogs, text while driving to business meeting or reveal embarrassing facts on online message boards.

Consider one lawsuit filed by the Equal Employment Opportunity Commission (EEOC) against the national retail chain Fry’s Electronics.  According to the EEOC, the assistant manager of a Fry’s store in Ronton, Washington, sexually harassed an employee under 21 years of age by continually sending her graphic text messages with invitations to his house and offers of alcohol.

The female employee reported the harassment to her immediate supervisor, who spoke to upper management about the behavior.  Shortly afterward, the supervisor was fired for poor performance, even though the EEOC found he never received a bad review and was promoted during his four years with the company.

The federal agency filed a lawsuit in 2010 charging that the retailer failed to take action against sexual harassment and then retaliated against the supervisor when he spoke out.

“…Technology can put a new spin on how harassment manifests,” said Luis Lucero, EEOC director of the Seattle Field Office overseeing the case.  “Text messages, instant messaging, and social networking certainly contribute to the blurring of formal lines of communication.”

Despite the blurring, Lucero added, the law holds employers liable for the actions of their supervisors and managers, so training them to prevent and redress harassment, “no matter what the medium,” is critical.

How far should employers go to restrict the use of mobile devices and time spent on the Internet? Let’s look at some of the risks causing concern today:

Risk #1: Texting while driving is an “accident waiting to happen.” The National Highway Traffic Safety Administration has attributed “distracted driving” as the primary cause of thousands of deaths annually and hundreds of thousands of injuries.  If an employee causes an accident while texting or talking on a cell phone in the normal course of his or her work day, your company could be found liable.

In recent years, numerous states have implemented laws that ban texting while driving.  Over time, a texting ban is likely to become law in all 50 states.

If your employees travel internationally, keep in mind that a long list of countries have banned talking on cell phones while driving, and some have banned, or are considering banning, texting.

Cell phone technology has improved dramatically.  In the event of an accident, evidence that the driver was texting is easy to secure on “smart phones” and difficult to refute.

Risk #2: The content of text messages can result in legal liability. In addition to texting while driving, there can be danger in what employees’ text messages say.  In recent years, your organization has likely updated its policies on issues such as discrimination and harassment to include e-mail messages.  In a similar manner, your company needs to be concerned about appropriate and inappropriate text messages.

Keep in mind it can be easier for some people to “text” harassing messages than it is for them to make the same statements face to face.

Just like e-mail, texts sent on company devices leave an electronic record that can be subject to discovery during a lawsuit.  Shortly thereafter, such embarrassing messages can end up in the hands of the general public.

Risk #3: Posts on social media websites can cause legal problems or damage your organization’s reputation.  An employee can instantly and thoughtlessly post an insulting, embarrassing or discriminatory message on a social media site.  The message gets seen by hundreds or thousands of people.  It can become a reputation-damaging smear difficult to contain and hard on the bottom line.

In other cases, disgruntled employees can post messages that reveal trade secrets or divulge confidential information about companies or their customers.

Consider the following five steps that your company can take to minimize the risks:

1. Implement a mobile device use policy. Employees must have a clear understanding as to when it is permissible to use mobile devices such as cell phones, pagers, or laptops. A policy that expressly prohibits texting or talking on a cell phone while driving during the course of business dramatically reduces the probability that traffic accidents will occur.

2. Add social media use and blogging to your employee manual. Adopt a policy that puts limits on, or even bans, visiting and commenting on social media sites during work time.  (See right-hand box for considerations about blogging.)

The strictness of your policy may depend on your industry. In one case, a hospital blocked employees from accessing certain non-work sites from clinical workstations because it was concerned about patient privacy, among other issues.  However, in other workplaces, an outright ban on social media may make jobs less appealing. Many employees are immersed in a culture where interacting with others electronically is the norm.

Employers should be aware that some social media discussion is legally protected.

The National Labor Relations Board (LNRB) has issued a report explaining that workers have the right to discuss matters affecting employment among themselves.  Under the National Labor Relations Act, both union and non-union employees can engage in “protected concerted activity” – which means they can come together online or offline to talk about working conditions, benefits and other aspects of their jobs.

The NLRB report stated that when one employee posts a work-related comment or complaint online and co-workers respond to it, the exchange becomes “concerted activity.”  However, that doesn’t mean all social media posts by employees are protected.  In some cases, courts have upheld terminations due to employees’ social media conduct.  The issue is complex and has not been fully addressed in the legal system.

Companies should consult with their attorneys about crafting and implementing social media policies and before terminating or disciplining employees for posting online.  You want to ensure your policies comply with federal, state and local laws and stand up to scrutiny.

3. Have employees agree in writing to whatever policy you adopt. Once you craft a policy, be sure each employee reads, agrees to, and signs off on it.  At a minimum, the policy should:

  • Explain clearly what is and is not acceptable.
  • Inform employees that they must follow all corporate policies when recipients of their messages can identify them as affiliated with your company or organization.
  • Outline the consequences for violations.

4. Practice what you preach. In addition to creating a policy, it is important that all levels of the organization comply.  For example, managers should not text or call employees while driving or expect staff members to respond to texts while commuting to and from work.

5. Technology can also help. Just as some employers monitor e-mail messages on company-owned equipment, there is software to monitor employee activity on social media websites.  Some employers install software that blocks access after an employee’s social networking reaches certain thresholds (for example, after 45 minutes a day).

In addition, to ensure that employees cannot text while driving, there is software that can disable the driver’s cell phone keypad while the car is in motion.  As an added benefit, insurance companies are also beginning to offer discounts for corporate customers that implement such technology.

Blogging Can Lead to Disclosing Confidential Information

Although blogs that are set up by employees may seem innocuous, they could lead to problems down the road.

A blog usually features ongoing commentaries on a wide range of topics, as well as images, and links to other postings.  Discussions may involve personal chit-chat, sports and politics or mere random observations.  Blogging requires only basic computer skills and software.

If you’re an employer, what’s the risk? For starters, an employee may use a blog to discuss vital employment matters. He or she might impart personal or business information about company founders, officers, supervisors and co-workers. Or the blogger may discuss job applications, human resource matters or office “scandals.”  Even worse, an employee may disclose proprietary information about the company that could be used by competitors and third parties.

In light of the potential repercussions, your company should take steps to reduce its exposure.  In several highly-publicized cases, employers have terminated the employment of workers who posted sensitive materials on their blogs.  Other employers have inserted restrictive policies into company manuals.

Taking these precautions is especially important if you own a business involving sensitive issues.

Consult with your attorney about what to put in your employee manual about blogging.  Here are six points to consider:

  1. Employees should carefully read the company manual before they begin blogging.
  2. The policy should apply to personal blogs and blogs for company use.
  3. A blog should not disclose confidential or proprietary information.
  4. If staff members comment about company business, they should clearly identify themselves as employees and include a disclaimer.  For instance, the disclaimer may state, “The views expressed are mine and do not necessarily reflect the views of the company.”  Employees should also not claim, or imply, they are speaking on the company’s behalf.
  5. A blog should not include company logos, trademarks or other identifying symbols.  It must also respect laws relating to copyrights, right to privacy, fair use, financial disclosure, and other applicable laws.
  6. The company should generally reserve certain rights, including the right to request that specific topics be avoided, the right to remove inappropriate comments and the right to delete postings.

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