Employee Misuse Of Social Networking Found At 43 Percent Of Businesses, According To Proskauer International Labor & Employment Group Survey

Monday, August 1, 2011 - 01:00

The Editor interviews Daniel Ornstein, a London-based Partner in the International Labor & Employment Group at Proskauer, on the firm's June 2011 survey of more than 120 multinational employers, which asked 10 questions aimed to capture current practices and attitudes concerning social media in the workplace.

Key findings include:

More than three-quarters of responders use social networking for business.

• The majority of these have only started doing so in the last two to three years.

• Over a quarter of responders actively block employee access to social networking sites, and a similar percentage monitor employee use of social networking sites.

• Nearly 40 percent of the businesses in the survey have had to deal with employees misusing social networks, and nearly a third have had to take disciplinary action against employees in relation to misuse of social networks.

• Despite the widespread use and misuse of social networking at work, nearly half of the companies responding still do not have social networking policies.

Editor: What prompted Proskauer to initiate this survey?

Ornstein: The business world is witnessing an ongoing and rapid proliferation in the use of social networks. Social networking is becoming as prevalent as email. While beneficial as a business tool for marketing, each week, we hear a new story of a business finding its reputation sullied by its own employee's viral tweet or Facebook posting, or by its own attempt to monitor workplace use of social media, or by its latest efforts to use social media background checks to vet job applicants.

Editor: What should employers do to limit the risks posed by social networking?

Ornstein: There is a growing consensus that, for several reasons, businesses need to have distinct and specific social media policies and practices in order to harness the benefits and minimize the risks these new media present. Their use is often on the cusp between the workplace and the personal sphere - in turn raising difficult questions as to whether and how rules regarding workplace confidentiality, loyalty, privacy and monitoring apply to these new forums. If so, how are they balanced against freedom of expression? While tweets and postings are similar to verbal remarks, as with any writing or recording, they are essentially permanent and can be forwarded verbatim by any recipient, often to multiple parties. This mismatch can be dangerous, and businesses should ensure those working for them think very carefully before they post or tweet.

Editor: Survey participants are employers who operate or have subsidiaries in more than two countries. How has the law concerning social media changed around the globe?

Ornstein: In collaboration with select law firms across the world, our report on the survey's findings includes a brief summary of some of the developing law in relation to social networks and the workplace-a valuable overview of the similarities and differences in different jurisdictions in relation to this increasingly important issue. We provided answers to the most frequently asked questions across the following jurisdictions: Argentina, Brazil, Canada, the Czech Republic, England, France, Germany, Hong Kong, Italy, Japan, Mexico, Singapore, The Netherlands, Spain and the United Arab Emirates.

Editor: Are employers permitted to monitor social networking use by employees at work on employer-issued devices?

Ornstein: For most of the jurisdictions covered by this survey, the answer is yes, but with constraints on the extent to which monitoring is permissible as well as requirements that need to be satisfied to ensure the monitoring is lawful. Employers will not generally have a right to monitor social networking use on an employee's own devices (such as a smartphone).

One exception to this is Italy, where employers are generally not permitted to monitor social network use (a restriction that cannot be circumvented even with employee consent).

However, an employer in Italy may prohibit the use of social networking sites during work hours and is also permitted to monitor the sites to determine whether an employee has used them in breach of any policies (and impose sanctions against an employee for breach of any policies), but the monitoring must be limited to ascertaining whether the employee used the social networking sites and may not involve any review of the data and information posted or checked by the employee.

Editor: If employers are permitted to monitor social network use by employees at work on equipment provided by an employer, what limits and considerations apply?

Ornstein : In the majority of jurisdictions, the key consideration is the balancing of an employer's legitimate interest in protecting its business against an employee's right to privacy (and associated rights in relation to data privacy and personal data).

Editor: Is an employer allowed to prohibit use of social networking sites during work on employer-provided and/or an employee's personal computer or mobile device?

Ornstein: In all the jurisdictions, an employer is permitted to prohibit the use of social networking sites during work, both on equipment provided by the employer and on the employee's own devices. However, the prohibition on use of social networking sites on an employee's own devices would not give the employer the right to monitor such devices (which would infringe the employee's right to privacy in many jurisdictions); rather, the prohibition would be an incident of the employer's general right to require employees to devote their working hours to their work. Moreover, in all the jurisdictions surveyed, an employer is permitted to block access to social network sites on employer-provided equipment.

Editor: To what extent is it permissible to refer to social networking sites when taking disciplinary action against an employee or when making hiring decisions?

Ornstein: In most jurisdictions, it is permissible to refer to social networking sites, both when taking disciplinary action against an employee and when making decisions about recruitment and selection. One exception to this is Italy, where it is not permissible to refer to social networking sites to make decisions about recruitment and selection of candidates, broadly because referring to social networking sites in such a context would be an infringement of an individual's right to privacy. In any event, and notwithstanding the general ability to refer to social networking sites both in relation to taking disciplinary action and in recruitment and selection, the following should be kept in mind (which are common to all jurisdictions):

• An employer would be well-advised to consider carefully the evidential weight to be given to information obtained from a social networking site. The information posted may be inaccurate, out-of-date, not intended to be taken at face value, or even posted by someone other than the person who is the subject of the inquiries.

• Relying on information contained in social networking sites creates a risk of discrimination. It is possible to envisage situations where someone is treated less favorably by reason of a protected characteristic, or a condition is imposed that has disparate impact on people of a particular class.

• Any use of social networking sites when making decisions should comply with data privacy requirements (including in relation to the secure storage and deletion of information after it is no longer needed) and any internal policies about monitoring of such sites.

Editor: Can employers limit employee use of social networking sites outside of the workplace?

Ornstein: In all jurisdictions, an employer has no right to prohibit the use of social networks per se. However, employees are not entitled to use social networks to do things that would otherwise be impermissible, such as misusing confidential information, infringing intellectual property rights, harassing another employee, or otherwise breaching the duties they owe to their employers. It would, therefore, be prudent for any policy on social networking to make clear that employees can be held responsible (and can be disciplined) for work-related misconduct that they engage in on a social networking site, even on their own time.

Editor: What steps should employers take to limit the risks of social networking?

Ornstein: In the majority of jurisdictions, the key consideration is the balancing of an employer's legitimate interest in protecting its business against an employee's right to privacy (and associated rights in relation to data privacy and personal data). Accordingly, the best practice in most jurisdictions is that employers should take the following steps in monitoring employee use of social networking sites:

• Put in place clear, well-defined and well-communicated policies or contractual provisions concerning the appropriate use of social networking sites and the sanctions for non-compliance - ideally, employees should expressly consent to such policies.

• Ensure monitoring goes no further than is necessary to protect the employer's business interests.

• Implement safeguards and practices to ensure:

• any monitoring is only done by those representatives of an employer who are authorized and who have a legitimate interest in carrying out such monitoring.

• any data collected as a result of any monitoring is stored safely, not tampered with and not disseminated more widely than is necessary.

• personal data is not stored for any longer than is necessary.

• Train management and employees in the correct use of information technology.

• Be able to particularize and evidence any misuse of social networking sites by employees.

To download a PDF of the survey results, visit: http://www.proskauer. com/files/uploads/Documents/Survey-Social-Networks-in-the-Workplace-Around-the-World.pdf

Please email the interviewee at dornstein@proskauer.com with questions about this interview.