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By: Cami L. Davis

Rothman Gordon, P.C.

Pittsburgh, PA

Many companies have been trying to figure out how to harness the power of social media to generate business. Sites such as Twitter, Linked In, Facebook or personal blogs can be a terrific way to engage new customers, create buzz, and tell the story of your business.

The flip side is employers are not the only ones using social media. Employees are too. Its natural for employees to talk about where they work and its natural that they may sometimes complain about their job or their supervisors. However, while this type of venting was once relegated to casual talk at the bar or among friends, social media introduces a whole new layer of concern for employers. The first issue is accessibility. Derogatory comments repeated among employees in a social situation generally wont travel much further. But those same comments repeated in a virtual social situation can suddenly been seen by thousands, if not millions, of people.

The natural urge is to curb employees use of social media to protect your companys reputation or proprietary information. However, in doing so, you may be unintentionally creating liability on several fronts. And as social media is a relatively new medium, there is little case law to direct employers actions.

A large part of the debate is what is private versus what is public. If an employee posts something defamatory on a public site, then the employee is taking the chance his or her employer might see and react. However, if the employee posts something on a private site (i.e. Facebook) and the employer uses improper means to view the posting, then the employer is taking a chance of violating the Federal Stored Communication Act. For example, in Pietrylo v. Hillstone Restaurant Group d/b/a Houstons, two employees were fired after posting sexual remarks about managers and customers on a password protected MySpace account. The employer gained access to the site through a third employee who gave the employer her password. If she perceived that she would lose her job if she did not comply, then the labor laws would have been violated. In Pietrylo, the jury found that the third employee was impermissibly pressured into giving her password, thus violating the Stored Communication Act.

Some companies have reacted by banning use of social media by their employees. While an employer is within its rights to ban use of social media on company time, it cannot dictate what employees do on their own time. Furthermore, overly broad social media policies could run afoul of employees rights to have legitimate conversations regarding workplace conditions, terms, salaries and benefits as protected under Section 7 of the National Labor Relations Act, which protects employees right to organize and bargain collectively.

Another issue that arises is the employer may be setting itself up for future litigation. Should an employer discover protected information about an employee (such as disability or sexual orientation) and the employee is later terminated, a jury could view the termination as discriminatory.

Employers can terminate employees for defamatory statements published electronically, but how that information is acquired must be legal. Rothman Gordon strongly advises its corporate clients to incorporate social media policies into its current employee handbook and/or guidelines that are specific as to what is and is not acceptable.

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