All Atwitter Over Twitter (and Other Social Networking Concerns)

October 14, 2010

When it comes to marketing a company and/or its products, employers want their employees to spread the word. But employees doing so via blogs, social-networking sites (like Twitter) may pose potential liability concerns for their employers. This is because recently the Federal Trade Commission (FTC), which has had little to do with the employer/employee relationship, has issued Guidelines which restrict the representations that may be made in on-line postings.

The New Guidelines

The FTC’s new Guidelines establish that liability can be imposed on companies who fail to make required disclosures that exist between on-line posters and the companies upon which they were commenting. An obvious relationship that must be disclosed is the employment relationship between the on-line writer and the company. So, if an individual is misled by the on-line author into purchasing a defective or dangerous product or service, not only would the on-line author be liable, but also the Company, regardless of whether the communication was known or not. No industry is exempt from these guidelines.

Solving the Problem

One way to become more aware of what your employees are doing is to monitor their work activities and take action against those who use social networking sites in a way that could raise legal problems. Generally, employers may discipline employees who use company equipment (computers, smart-phones) inappropriately. Federal and state laws limit how far an employer can go to monitor their employees’ social networking activities. For the most part, courts try to seek balance between the employer’s interest in objecting to the employee’s conduct (the potential harm to the employer) with the employee’s expectation of privacy. A way to reduce this risk is to advise all employees in writing that the employees should have no expectation of privacy in using any company owned equipment and that their use of the equipment will be monitored.

An additional step should be the implementation of a “Blogging and Social Networking Policy.” Such a policy should instruct employees that any on-line communications are subject to the company’s policies and procedures. It should also prohibit employees from posting any confidential or proprietary information, forbid employees from using the name, trademark or logos of the company, and require employees to make it clear in their postings that the views and opinions they express about work-related matters are their own and not those of their employer. Finally, before disciplining or terminating an employee for use of social networking sites, consider the potential legal consequences of such actions.