Editor: We see that this is the second annual report on social media use in the workplace from Proskauer’s International Labor & Employment Law Group. What prompted a second survey?
Ornstein: Proskauer conducted a second survey on social media use in the workplace for many reasons. The survey gleaned interesting results last year, but because social media is new, particularly as a tool in the workplace, it is evolving rapidly so we were very interested to see if attitudes towards and use of social media in the workplace had changed in the last year and, if so, how. Also, because social media has been around for a few years, we wanted to identify any trends or permanent traits and summarize best practices for optimizing social media use in the workplace.
Editor: Do you think employers now have more positive attitudes towards social media, particularly for non-business use?
Ornstein: Yes, and that is one of the striking changes from last year’s study. In the first survey we conducted, 30 percent of business leaders thought that employees’ use of social media, including for non-business purposes, was advantageous for business. That figure increased to 40 percent in this year, which is a significant increase that may reflect a growing understanding of social media use. Employers’ more negative attitude about social media in previous years may therefore have been due to uneasiness towards new platforms with which they were unfamiliar. As business leaders have grown more familiar with social media and have a deeper understanding of its reach, it appears their attitudes towards its use have become more positive.
Editor: What should employers do to limit risks posed by social networking that were identified in the second survey?
Ornstein: Most importantly, employers need to have a dedicated, well-communicated policy on social media use that clearly sets out acceptable and unacceptable usage both inside and outside the office. The social media policy should comply with and be implemented according to local laws, especially privacy legislation. We are seeing a significant amount of misuse of social media by ex-employees, as evidenced by our survey results, especially with regard to misuse of confidential information, and this needs to be explicitly addressed in the policy.
In my labor practice, I have employers who’ve chosen to monitor social media usage, and this year’s survey confirms an increase in the number of employers monitoring social media since last year. Employers should have clearly expressed and well-communicated polices about the nature and the extent of the monitoring, again which comply with and are implemented in accordance with local laws. Business leaders should appreciate that, as a matter of best practice, irrespective of where they are based, if they do choose to monitor employees’ social media use, the monitoring should not go further than is necessary to protect an employer’s business interests, and should be conducted only by designated employees who have been adequately trained to understand the limits of permissible monitoring.
Editor: Are there many discrepancies across global jurisdictions, each of which may have very different privacy laws?
Ornstein: There are local discrepancies in privacy laws, but there is a high degree of commonality across jurisdictions because, for the most part, when it comes to dealing with social media, they face the same key legal issue: balancing individual rights and privacy against the rights and interests of the company. Jurisdictions may approach that balance in slightly different ways, but because the fundamental issue is the same in nearly every jurisdiction, there exists a high degree of consistency across different jurisdictions.
Employers should generally ensure that monitoring is limited to what is necessary to protect clearly identified interests. While monitoring – especially the monitoring of content – can be problematic in certain jurisdictions, generally specific, orderly and proportionate monitoring is needed to comply with privacy laws. The more clearly an employer can show their monitoring is protecting specific, carefully considered interests, the greater their chance of proving the monitoring does not infringe privacy. Interestingly, the real global outlier here is the U.S., where a central legal issue evolves around protections given to employees under the National Labor Relations Act.
Editor: To what extent have employers had to deal with misuse of social media by current or former employees?
Ornstein: Fifty percent of employers have had to deal with misuse of social media. That figure becomes all the more striking when you realize the sheer number of people for whom social media is relatively new, with most employers only having started using it for business purposes within the last few years (as our survey also shows). Despite this high level of employee misuse, we discovered that only about one-third of employers currently provide training for employees on the appropriate use of social media.
Editor: Has the number of employers with dedicated social media policies increased?
Ornstein: The survey identified a 14 percent increase in the number of employers with dedicated social media policies, from about 55 percent last year to 69 percent this year. This is a significant increase that demonstrates that businesses realize they must take preemptive steps to prevent social media misuse going forward. Also, most of the social media policies introduced both this and last year covered social media use both inside and outside the workplace, while previous policies overwhelmingly covered just use at work. This is a sensible development by employers that I would encourage.
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 since the first survey?
Ornstein: The law is evolving rapidly to catch up with what is happening in this fast-changing area. This year, there have been numerous cases from across the globe addressing issues surrounding the use of social media. There has been a proliferation of NLRB cases in the U.S., and in the UK we’ve had cases addressing issues such as employees’ expectations of privacy on Facebook. The courts have held that there can be no expectation of privacy of what you put on your Facebook page, which I think is a sensible judgment, given how easily such information can be disseminated.
In other jurisdictions, including Argentina, France, Germany and Spain, we have had cases that dealt with issues such as whether employees can be sanctioned for making derogatory remarks about their employers on social media. There are mixed decisions as to whether that’s permissible across different jurisdictions. If there is one lesson that can be learned from the jurisprudence across the world, with caveats arising out of the focus on the NLRA in the United States, it is that clear social media policies are invaluable at maximizing the chances of a business successfully defending the decisions it makes when trying to discipline and/or litigate against employees in relation to postings on social media.
Editor: Have there been changes in the extent to which an employer is allowed to prohibit use of social networking sites during work on employer-provided and/or an employee's personal computer or mobile device?
Ornstein: No. Employers have broad discretion as to whether they can block social media use on workplace devices, but they have no right to block use on employees’ personal devices, despite their ability in theory to mandate that employees not use social media during working hours. That type of rule is really no different from one stating employees shouldn’t spend all their time at the watercooler: it’s an application of a general principle that one should be working while at work. The reality is that prohibiting employees from using social media on their personal devices while at work, as long as it doesn’t greatly interfere with their duties, would be a pretty hard rule to enforce.
Editor: Have there been changes in the extent to which employers can limit employee use of social networking sites outside of the workplace?
Ornstein: No, that has also remained the same. Technically, an employer cannot prohibit what an employee does outside the workplace. Of course, if an employee is outside the workplace and does something that causes harm to the company – for example, harassing an employee on a social networking site outside of working hours, or misusing confidential information – an employer can discipline him or her for such misuse, but this is because social media is the medium for more general type of wrongdoing. Employers can’t prohibit social media use just to stop those wrongful acts, any more than it would be sensible to ban pencils if someone uses one to stab a co-worker.
Editor: To what extent is it still permissible to refer to social networking sites when taking disciplinary action against an employee or when making hiring decisions?
Ornstein: I strongly believe that employers should exercise extreme caution when using information contained on social media sites to make employment-related decisions, such as recruitment and discipline. That information may well be inaccurate, and relying on it creates risks about unlawful discrimination. It could also breach privacy requirements and infringe an individual’s rights to privacy.
I can imagine some instances in which an employer would be very tempted to rely on such evidence, like when an employee calls in sick. An employer might be tempted to look on the employee’s Facebook page for postings indicating that he or she is perfectly healthy. (I call this “the Ferris Bueller problem.”) I counsel employers to be cautious about relying upon such information. First, they must ensure that the information they are viewing is publicly available. Second, employers must give the employee the chance to explain themselves and be given the opportunity to respond to "evidence" found on social media. If employers do wish to rely on information contained in social media (and many do), they should have clear practices and polices in place for how and when they should rely on information contained in social media which are implemented in accordance with and comply with local laws. Having clear guidelines within the organization will help ensure employers are on the right side of the line.