12thMarch

The Birds and the Blogs

The Talk Every Employer Should Have with Their Employees as E-Communication Grows

E-communication is maturing into an everyday facet of our lives.  And as more digital mediums continue to infiltrate the workplace and our outside interactions, companies are feeling the effects of their employees’ words both on and off the clock.   Email; social media sites such as Facebook, Twitter, and Pinterst; blogs and forums—these are a few of many new communication formats that, since their inception, could expose your organization to legal liability.

There are countless stories of companies experiencing bad publicity and litigation for employees’ interaction through email and social media.  If your organization’s technology-use policy is obsolete or nonexistent, you may be exposing yourself to unnecessary headache or risk.  But taking protective measures can mitigate the unfortunate effects when an ‘employee’s views expressed do not necessarily reflect the opinions of the company.’

In 2007, attorneys Neal Buethe and Sally Scoggin submitted an informative article to the Bench and Bar of Minnesota explaining some of the issues facing employers in this regard.

The main point to take away from the piece is that companies need to maintain up-to-date rules and policies addressing e-communications that set boundaries for what the company considers acceptable use of email, instant messages, blogs, personal web pages, listservs, and camera phones.  They offer four important suggestions:

First, the company’s level of tolerance for various types of communications should be clear and communicated at the outset of employment. If communications about the company that occur both on and off the job—and with or without use of the company’s resources—are prohibited, policy should make that clear. Restrictions on misrepresenting opinions and positions on behalf of the company should also be clear. Some states, currently including Minnesota, have statutes prohibiting termination for certain lawful activities outside of work, but at least in Minnesota, the statute is limited and does not apply to blogging or other electronic communications.

Second, to avoid possible invasion-of-privacy claims or claims that state or federal laws prohibit monitoring employee electronic communications, policies should expressly give employers consent to monitor emails and related electronic communications. Absent clear notice, employees may think of email and IMs as private and, in event of monitoring by the employer, may have grounds for an invasion-of-privacy claim. It is important to clearly indicate in policy manuals that all technology and content of the work technology belongs to the employer and, therefore, personnel should have no reasonable expectation of privacy for information stored or transmitted by means of work equipment.

Third, employees should be aware of the employer’s zero-tolerance stance on inappropriate communications, including prohibitions on protected-class-based harassment, discrimination, and defamatory communications, as well as employee disclosure of confidential employer or customer information and trade secrets. The potential risks of not doing so include possible claims from employees, vendors and clients and loss of confidential information, trade secrets, and privileged information.

Fourth, implementing effective security procedures and consistently enforcing policies will strengthen the company’s lawful control over employee activities. All employees should be aware of the employer’s expectations and of the specific consequences, including discipline and discharge, associated with violation of workplace e-communication policies.

Neal Buethe & Sally Scoggin, Doocing the Blogzilla:  Managing Workplace E-Communications (June 1, 2007), http://mnbenchbar.com/2007/06/e-communications/.

Bueth and Scoggin also summarize what provisions should be included in an appropriate technology-use policy:

  • Technology tools are provided for business purposes only;
  • There is no right to privacy while communicating at work or on work equipment;
  • Communications and activities may be monitored;
  • Certain types of communications are prohibited, including those that involve:
    • Disclosure of trade secrets and confidential information, whether of the employer, vendors, customers, or other third parties;
    • Harassing, demeaning, obscene or offensive communications;
    • Defamatory or disparaging communications, or those that threaten to harm the reputation or good will of the company, its employees, or others;
    • Communications that invade others’ privacy;
    • Unauthorized downloading, uploading, or use of copyrighted materials;
    • Unauthorized use of company logos, trademarks;
    • Misrepresentation of company positions, endorsements etc; and
    • Communications that violate company codes of conduct or other polices.
  •  Any violation is grounds for discipline.

Id.  E-communications held out to the public give rise to additional policy considerations:

  •  Make clear that if an employee discusses his or her workplace, confidentiality is to be preserved. As one employer said, “It’s one thing to blog about your workday, another thing to give away the recipe to the secret sauces.”
  •  Require a disclaimer of any endorsement by the company;
  •  Require that the author identifies self;
  •  Prohibit blogging on company time;
  •  Include a general blog-at-your-own-risk prohibition.

 Id.

Seek legal counsel to provide you with a policy that fits the interests of your organization.  It is also important that employees are aware of the business’s stance on e-communication.  Making the rules accessible and educating staff will reduce the hassle and risks associated with e-communication.1


1 Disclaimer

The site is not intended as legal advice or to substitute for a formal consultation with a licensed attorney.  The content is provided for general information and reference purposes, and thus the reader should not rely on any information providing legal advice, nor is it to be construed as the formation of an attorney‐client relationship.  Consult with your attorney for any legal advice.