Between a Tweet and a Hard Place: The Challenges of Social Networking for Hospitality Employers

To say that the use of social networking tools has exploded in the past several years is an understatement. Some studies suggest that of the millions of Americans who use the Internet, nearly half frequent social networking websites such as Facebook, Twitter, LinkedIn, and MySpace.

These social media platforms have become an increasingly popular way for people of all ages to share ideas, vent frustrations, and generally communicate with one another. The growth can be attributed in part to parallel developments in technology and the widespread availability of social networking tools on a variety of devices, including now-ubiquitous smart phones such as iPhones and Blackberrys.

The use of these social networking tools in the workplace has also grown exponentially. It is common for employees to use social networking sites for personal purposes to post or share comments about their co-workers, superiors, and their work life generally, and many do so while at work.

This provides a number of opportunities, as well as significant risks, to employers who allow their employees to access social networks at the workplace. Employers may be exposed to potential harm by the conduct of their employees, including injury to corporate reputation and disclosure of company trade secrets, confidential financial information, or information protected under federal statutes such as HIPAA and GINA.

Compounding these concerns are the immediacy of the medium, the vast reaches of the audience, and the inability to retrieve information that has been posted on social networking sites.

Instead of waiting to react to potential problems when they arise in connection with social networking tools, you should anticipate the potential problems and take steps now to develop and implement employment policies to address the multiple issues generated by employee use of social networks.

It is unlikely many of your employees have access to the Internet at work, but they certainly use social networking sites at home or on mobile devices, and often to comment about your workplace, your product, or both. Therefore the focus of your policy will be the appropriate use of social networking sites when the employee is not at work.

If you choose to address social networking by employees, you should first convene certain employees, including representatives from human resources, information technology, marketing, and public relations, as well as active employees who use social networking sites, to develop a policy and framework for approaching and implementing the policy.

The goal of the meeting should be to identify the issues unique to you. Topics may include the type of information you consider confidential as well as the potential benefits of having a presence on social networking sites. If the latter is an option, then you should determine who will have access to and monitor the company’s profile, so as to maintain integrity of the company’s brand and control the content posted to the profile.

Once the working group has identified the issues, human resources and upper management should begin to develop the policy. Due to the rapidly changing nature of the area, the special circumstances unique to each employer, and the relative dearth of case law addressing many of the issues involving social networking, legal counsel should also be engaged at this stage. You should consider the following issues in crafting the policy:

1. Decide whether to allow any category of employee to use the company’s computers and networks to post, tweet, or blog. If they are permitted to do so, determine what if any restrictions they will be subject to. You should remind employees that employer communications equipment is the property of the company and that unless specifically authorized by the employer, time spent on personal or third-party sites cannot interfere with the employee’s job duties. Similarly, if allowed by state law, remind the employee that any activity on employer-owned equipment is the property of the employer, and the employee has no right to privacy when using employer-owned equipment.
2. Remind employees of fiduciary obligations so that if they identify or otherwise comment about the company on social networking sites, they understand their obligations. Employees should also be instructed to avoid commenting about the company’s private information, using confidential information, or discussing internal matters.
3. For unionized employers, consider whether there is a duty to bargain with any union about the adoption or implementation of a social networking policy.
4. Consider whether the company’s other policies, such as anti-harassment, discrimination, or confidentiality provisions are consistent with and referenced in the social networking policy.
5. Consider how to implement the new policy, monitor its application, and train employees as to the proper use of social networking sites.

Once the policy is developed, it should be clearly and unequivocally communicated to employees, and training should be implemented as appropriate. You should also continue to revisit and revise the policy at least annually to keep up with the ever-changing technological advancements in social networking. Finally, if you implement a policy and then determine an employee has violated it, you should seek legal counsel prior to making any disciplinary decision.