Social networking is creating workplace havoc.
Employers are faced with decisions varying from a total ban of the services to developing policies that allow the use of on MySpace, Facebook, Twitter and other new communication methods.
Employees must deal with the ability to maintain contact with people outside the workplace in a timely fashion without violating any company policies that could cost them their job.
Social responsibility on both sides is a fine line, according to Tony G. Puckett, a member of the McAfee & Taft Law Firm.
Puckett, from the Oklahoma City office, was among speakers at the LEEB (Labor & Employment and Employee Benefits) University presented by McAfee & Taft to human resource managers.
Employers always are concerned about losing sensitive information about the company that could hurt employees and damage operations, Puckett said. This technology makes it easy to leak that data. As a result, employers always are looking for ways to prevent those problems before they occur.
Employees often use the sites to vent frustrations about the company, co-workers and other workplace issues they might be experiencing at that time. Unfortunately, they sometimes also make derogatory remarks about others in the workplace, that if known to others, would be harmful.
New forms of communication, blogs, texting, microblogs — twitter — social networking sites, digital cameras, YouTube, cell phones with cameras and videos, GPS tacking on vehicles and phones are wonderful devices when properly used, he said. Facebook alone currently boasts a membership of 250 million subscribers.
Real difficulties happen when employees want their privacy on these social networks while using them on company time.
The best way to get around those difficulties is to train everyone in the company about policies and then make certain they are equally enforced, Puckett said. Standards can be put in place on workplace productivity, confidentiality of information, injury to business reputations and a reminder that digital information, unlike phone calls and letters, last forever and can show up as evidence many years later.
Putting employee expectations on the line when someone is hired can be the first step to help reduce possible breaches in any confidential information that might be shared. It is better to have these policies in place at the start of employment than later and try to make up for lost time.
Questions often raised leave employers wondering how to control work time spent on the Internet, texting, blogging and other communication methods, Puckett said. Then the question about whether or not policies are in place to legally monitor employee activity and discipline accordingly.
An important rule to remember is that electronic behavior is a means, not an end, he said. If behavior is prohibited, it is prohibited via computer as well.
The corollary is that thoughtful, well-communicated policies will set employee expectations regarding all types of workplace behavior. That is followed by a balance of a reasonable expectation of privacy with legitimate business purpose and scope.
The U.S. Constitution tops the governing laws and legal authorities that govern workplace monitoring programs. That is followed by the Federal Electronic Communications Privacy Act — Title II, the Stored Communications Act. Then there is the National Labor Relations Act, case law and Oklahoma laws protecting invasions of privacy.
That said, Puckett related a case where courts found that a workplace hidden camera was not an invasion of the employee’s privacy rights.
Everything started when the employer learned that someone in the company was using a computer for viewing pornographic material in the early morning hours. Determined to identify the culprit, a hidden camera was installed in the office that was locked after hours.
The two employees using the office sued because they felt their right to privacy had been invaded.
However, the court noted the camera was turned on only at the close of the business day and was installed for a legitimate business concern.
A Federal appeals court also held that a Washington State teacher’s blog attacking co-workers was not protected speech of public concern, but rather than the comments were ‘‘racist, sexist and bordered on vulgar,’’ and were ‘‘mean spirited.’’
Referring to the Electronic Communications Privacy Act of 1986, Puckett said that Title I protects wire, oral and electronic communications while in transit. It also protects communications held in electronic storage, most notably messages stored on computers.
General provisions of the law protect wire, oral and electronic communications form interception, access and disclosure.
Employers may not intercept a communication, that is tap a phone line; disclose or use contents of an illegally intercepted communication, or use an electronic, mechanical or other device to intercept oral communications — hide a tape recorder.
Important exceptions also are provided.
First is the employee can consent, either expressed or implied to the recording; business extension or business use and provider exception.
Oklahoma law allows one party to a telephone conversation to make a recording.
Employers are watching the electronic activity within the company according to a June 2009 study of decision-makers at companies with more than 1,000 employees.
The study showed that 43 percent reported investigating an e-mail based leak in the past 12 months; 33 percent employ staff whose exclusive job is to monitor the control of outbound e-mail, up from 24 percent in 2008; that 31 percent reported firing workers for misuse of e-mail and 8 percent reported terminating employees for use of social media, up from 4 percent a year earlier.
Various reasons were cited for the monitoring efforts including quality and reputation control; risk of defamation or invasion of privacy claims by other employees or outside parties and misappropriation of trade secrets or confidential information.
Suspicious activity by employees was given as another reason for monitoring that sometimes led to disciplining or termination of an employee.
Make certain that computer use and monitoring policies are transparent and evenly enforced, Puckett said. Employees will feel less violated when they know what will be happening and continuation of employment with knowledge of the policy is in place.
Make certain that employees understand they cannot expect privacy in company communications, he said. Use of the computer system equals consent of the employee and passwords are for external security only, not for the privacy of the user. All passwords must be disclosed upon request.
Puckett reminded his audience that companies must have a system and policy in place for storage, backup and retrieval of electronic documents, including emails.
He also noted that federal rules require production of all electronic evidence unless it is cost prohibitive.
Plan ahead, Puckett said, consult with computer personnel. Do not destroy documents related to pending or known claims or litigation. Anything can be retrieved if a part is willing to spend the money.
Controlling the social networking is impossible, Puckett said. The best way to control difficulties is to have a clearly stated policy in place, train everyone about the rules and make certain they are enforced equally.
Social networking is creating workplace havoc.