Social Misuse Fact Finding Session

By Rachael Licata 

In searching about some of the legal issues while using social media, I am most interested in what employers can and cannot do. Especially when done within the realm of their employees  personal time. 
I found the following information from Saper law offices. 

• Can an employer check up on employees through social media?                                       Yes, with some limitations

• Employers can check LinkedIn to verify information supplied by an applicant or employee on previous work history.

• Employers can check Twitter, Facebook, MySpace, etc. for postings that may be viewed as harassment of other employees or if an employee who called in sick is really out partying

• Employers cannot use information found on social medial to discriminate against employees or candidates due to race, religion, sexual orientation or other protected class. (Better have screening policy in place) 

Social Media & Employment

• Employers may use social media User Generated Content  UGC for hiring/firing decisions

• Corporate “social media policy” can prohibit employee participation, e.g.  tweets, marks/logos, use of company IT 

• Marketing/PR positions present different rights & risks

• ECPA and/or CFAA may protect non-consensual intrusion into third-party employee accounts 

Intellectual Property

• Who owns the Copyright to material posted on Social Media?

• The original author owns the copyright to their posts on Social Media.

• If someone is hired to promote a product to friends or other users on Social Media , the Work For Hire doctrine will apply, and it is best to clarify ownership in the contract.

• However, it should be considered that many postings may not meet the minimally creative threshold and therefore may not have Copyright protection. (Facebook Status updates? Twitter updates?)

However, there is no “law of social media,” yet!

Law evolves slowly and cannot keep up with technological change

Legacy real-world rules apply, and adapted to social stream,  otherwise unlawful practices are still illegal when online.

So what are some best practices?

• Culture— Foster corporate culture of openness. Listen to & respect opinions of employees, customers and other stakeholders.

• Trust— Employees should be trusted to communicate and develop relationships with customers. Do not review content prior to posting.

• Training— Provide employee training about how to blog; review legal issues with employees. Give employees option of participation for off-hours socmedia activities.

• Transparency— Disclose connections with customers. Reveal commercial and sponsored relationships. Transparency and authenticity are key.

• Accuracy— Confirm facts. Check with colleagues before publishing content that will affect them. If employees write about private matters, insist upon permission before postings. 

• I think I will inherently keep all of these things in mind if and when I start using Social Media in the work place.