Technology has the capacity to make life easier and business more profitable, but sometimes it has the opposite effect. Take, for example, a situation in which an employee uses a personal Twitter account to drum up business. Then, when the employee no longer works for the employer, all those Twitter followers are still following the former employee—who may use them to drum up business for a competing employer.
The proliferation of social media in the workplace brings up a number of questions: How should employers capitalize on the communication made possible through social media? How can you use social media while still protecting trade secrets, customer lists, and other confidential information? What social media policies are advisable? What policies might land you in legal hot water?
Employers understand the importance of trade secrets. And you understand the importance of social media. You also need to understand that you must avoid putting confidential information on a collision course with your company’s social media presence. In late 2008, West was doing a lot of hiring.
Consider this scenario: A company encourages sales employees—employees
subject to confidentiality and non-compete agreements—to create personal Twitter accounts and recruit customers as followers. That might not be a bad idea, but the company has gone about it the wrong way. It should have encouraged them to get individual company Twitter accounts, not personal accounts.
Since the Twitter accounts are personal accounts held by the employees, the employer’s ability to enforce confidentiality and non-compete agreements is diminished. The minute employees leave the company, they have ready-made customer lists.
How to get it right
You aren’t powerless to avoid the risk associated with a social media presence. Policies can offer significant protection. Write policies to say such things as:
- This account belongs to the company.
- This account shall be linked only to your work-related e-mail.
- You shall not change passwords unless directed to do so.
- You shall forfeit any access to this account upon termination of employment.
- The passwords are confidential proprietary information.
The right policy language, either included in a confidentiality/noncompete agreement or set up as a separate policy, can ensure that employees understand the rules associated with using social media sites such as Twitter, Facebook, and LinkedIn. And you gain a clearer understanding of the benefits and risks of social media.
Be aware of how confidential information can lose its protection by disclosure through social media. You also need to assess how easy it may be to find customer lists or other confidential business contacts on social media.
While the purpose of some policies related to social media is to protect confidential information, the goal of other policies is to keep employees from posting mischievous and divisive content. But the National Labor Relations Board (NLRB) has been critical of elements included in many company policies.
Since August 2011, the NLRB has issued three guidance memos on how employee use of social media can constitute concerted activity protected under the National Labor Relations Act (NLRA). In May, NLRB Acting General Counsel Lafe Solomon released a report examining social media policies from seven employers. He found parts of six of the seven policies unlawful.
As recently as September, the NLRB ruled on the social media policy of warehouse club Costco. The policy cautioned employees about posting messages “that damage the company, defame any individual or damage any person’s reputation or violate the policies outlined in the Costco Employee Agreement.”
The NLRB said Costco’s policy could be interpreted as discouraging employees from exercising their right to discuss terms and conditions of employment. “In these circumstances, employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of [Costco] or its agents),” the Board decision states.