In yesterday’s Advisor, Francine Esposito, Esq., partner at Day Pitney LLP, discussed the challenge of managing employees’ use of social media and the consequences of taking improper actions. Today, Esposito elaborates on a different set of consequences: those that arise from not taking any action at all on the issue of social media.
Consequences of Not Taking Action
Antiharassment laws: Employees’ social media use could result in actionable harassment in numerous ways, and employers may face liability if they fail to prevent or stop the conduct about which they were aware or should have been aware, including through social media connection with the offending employee and/or victim.
Negligence: Employers may face negligent hiring or retention claims when an individual’s social media posts demonstrate that he or she is not suited for the particular employment or that he or she possesses dangerous attributes.
For instance, an employer may be liable for injuries incurred by a third party during an accident caused by a drunk tractor trailer driver whose frequent public social media posts referenced his binge drinking—an issue about which the employer arguably should have been aware.
False advertising: Employers may face claims of false advertising based on employees’ social media posts. Indeed, Federal Trade Commission guidance has put employers on notice of their potential liability for their employees’ online endorsements of their products or services without disclosing the material fact of their employment—even if the comments are not authorized or known by the employer.
As such, contrary to most employers’ desires, they must actually instruct employees to disclose the employment relationship under these circumstances in an effort to avoid liability.
Loss of confidential information: Employees may disclose their employer’s confidential information on social media. This commonly occurs with customer lists, when employees connect with customers in a manner that is visible to others.
Further, confidential information is also often lost when departing employees attempt to take with them the substantive content and/or contacts created over a period of time by using the employer’s social media resources.
Indeed, disputes have occurred over the ownership of Twitter and LinkedIn® accounts where employers did not specifically set forth in either policies or formal agreements who owns such work-related social media accounts.
Discovery: Employers forego a significant benefit in defending employment litigation if their counsel fails to inquire into plaintiffs’ social media use. Indeed, most plaintiffs put their mental state at issue by seeking damages for emotional distress allegedly caused by their employer.
Social media postings are even better than diaries, as they often include photographs and other information relevant to employee claims detailing purportedly distraught former employees clearly enjoying life.
Although employers cannot prohibit all employee social media use they consider to be undesirable, they may nonetheless take reasonable steps to protect their interests through well-thought-out policies and agreements tailored to their specific workplace, diligent and appropriate monitoring of social media, training of managers and employees regarding the pitfalls of social media use, and well-reasoned employment decisions.
Most importantly, employers should confer with counsel whenever they are unsure of whether their action—or inaction—may cause liability under the constantly evolving laws relating to social media use.