Jottings By An Employer's Lawyer

Monday, August 24, 2009

Social Media and the Employer

There is nothing startingly, or even really new, in this Q & A from the Birmingham Business Journal, What impact do you think the proliferation of online social media will have on human resource policies and employment law issues?. Although I must say it is going to be a brave employer who follows this advice, no matter how legally correct it is:

Employers must have a written policy against using recreational social media at work. It is a distraction, and the employee’s comments could incur liability for the employer based on defamation or laws prohibiting discrimination.

Just as a practical matter, if you are not going to follow it, it is probably better not to have a policy; and I doubt many companies can enforce such a policy these days.

But what really got my attention is just how much ink (well pixels really) this whole issue is attracting these days. I am a contributor, having given a couple of speeches, including national on-line programs for the ABA and other entities, and am scheduled for some more, but what this really makes me think is how much of a herd mentality we all have.

Probably the best comment came from a member of the audience at one of my speeches. He questioned why this was a continual topic, when there was never any law!

That may change, but as of now, there's lots more talk about the impact of social media on employment law, than there is either actual impact OR law.

Michael, there actually is quite a bit of impact, you just haven't seen much yet in litigation. For those of us dealing with employees on social networks from the in-house counsel side, social networking is taking up a great deal of our time as employees post items embarrassing to co-workers or the employer. We are having to train HR to understand that free speech comes with responsibility and that conduct which occurs away from work may still result in the loss of a job. I personally have dealt with dozens of employee terminations for things posted on social networks within the last 12 months.
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