Editor: Please summarize the key findings of Proskauer’s Survey – 2013-2014 Social Media in the Workplace Around the World.
Ornstein: Here are some of the key findings of our third annual survey of 110 multinational companies in various parts of the world:
Editor: What purpose does the survey serve?
Ornstein: The survey serves three purposes. First, it provides an insight into how social media use in business is developing and evolving. As noted above, nearly all businesses now use social media for business purposes, making the survey results intrinsically interesting and relevant. Second, the survey gives us an understanding of the risks associated with increased social media use, which in turn helps us to provide solutions to mitigate those risks. If we don’t know what the risks are, it is difficult to put together strategies for dealing with those risks. Third, the survey provides an interesting summary of the changing legal landscape around the world. As social media use becomes more and more prevalent, situations of employee misuse arise more frequently. This requires courts to grapple increasingly with the issues that arise out of this misuse, such as determining the boundary between what information is public and what is private with regards to Facebook posts. We have seen highly similar cases grappling with this issue in a wide range of our clients’ jurisdictions, including Argentina, France and Japan. This is because in many jurisdictions, the issue of whether or not disciplinary action taken against an employee is lawful depends (amongst other things) upon whether or not the post and the centre of the dispute is private (a factor militating in favor of disciplinary action being unlawful) or public (in which case the disciplinary action is more likely to be lawful).
Editor: What are the specific risks associated with the misuse of social media inside and outside the workplace?
Ornstein: Misuse of confidential information is extremely significant – not only deliberate misuse, but also the inadvertent misuse of confidential information. For example, someone’s LinkedIn profile might divulge information about the clients with whom they are dealing. Another specific risk is misrepresentation of the views of the business. Someone might make a remark about a client or product that is disparaging or at odds with the views of the business held at large. There is also inappropriate non-business use. For example, people using social media, whether at work or even work-related sites, post comments that are entirely inappropriate, ranging from the offensive to the pornographic. Another specific risk is disparaging remarks about the business or its employees, which can lead to charges of bullying, as well as cause damage to the reputation of the business itself. Associated with that, there is a risk of harassment, such as cases where groups of employees exclude or gang up against other employees via social media.
Editor: What percentage of businesses have initiated measures to protect themselves? What measures should be used? What are best practices in handling social media?
Ornstein: As noted previously, nearly 80 percent of businesses we surveyed now have specific policies dealing with the appropriate use of social media. About 37.5 percent now have specific social media training. Coupled with those measures, a high proportion of employers are monitoring social media usage and even blocking access to social media sites. In my view, the best practice is to create clear policies and guidelines about social media use and back up those policies with training. I think there are limits to how much you can protect your business relying solely on blocking and monitoring. In particular, it is nearly impossible to block employees from using social media on their own devices. As a result, it is vital that businesses have clear policies and training that address both devices provided by the employer and employees’ own devices.
Editor: What nations were represented in this survey by multinational businesses? How were participants chosen?
Ornstein: We chose businesses from all over the world to participate, working with the lawyers who represent these businesses. We received 110 responses from a large spread of different businesses. The countries represented in the survey were Argentina, Brazil, Canada, China, Denmark, France, Germany, Hong Kong, India, Ireland, Italy, Japan, Spain, the Netherlands, the UK and the U.S.
Editor: How did you choose the lawyers who interviewed their clients?
Ornstein: These were lawyers who we felt represented a range of different countries around the globe. They are with law firms with whom we have close working relationships.
Editor: What is the generally accepted practice regarding an employer’s monitoring of social networking use by employees at work who use employer-issued devices? What limits generally apply? What countries have laws that are outliers – not accepting employer monitoring of any social networking use?
Ornstein: For most jurisdictions it is generally permissible to monitor use of social networks used by employees at work on employer-issued devices ranging from desktops to laptops to phones. There are, however, certain limits that are universal to many jurisdictions, which include making sure that monitoring complies with data protection laws, privacy requirements, requirements to consult with employee-representative bodies to ensure that the monitoring is lawful, and securing the consent of individual employees. Those are four factors that, in many jurisdictions, have to be accounted for in order to make monitoring lawful. Oddly enough, the one outlier to those general provisions is the U.S., where the primary consideration is the National Labor Relations Act’s Section 7, which prohibits employers from interfering with or restraining employees against exercising their rights to engage in certain collective activities, such as organizing coworkers, making complaints about working conditions, on-the-job protests and strikes. Much of the case law in the U.S. dealing with social media is very much centered around the National Labor Relations Act’s prohibitions against interference with workers’ rights and the extent to which monitoring and preventing employees from using social media infringes Section 7.
Editor: Is an employer allowed to block access to social media sites during working hours on equipment provided by the employer? What about use of employees’ own devices?
Ornstein: In nearly all jurisdictions, an employer is permitted to prohibit the use of social media sites during work both on equipment provided by the employer and on the employee’s own devices. However, the prohibition against use of social media sites on an employee’s own devices does not give the employer the right to monitor such devices. Rather, in most jurisdictions, that prohibition will be an incident of the employer’s general right to require employees to devote their working hours to their work. There are serious practical issues as to whether prohibiting employees from using social media on their own devices is something that is enforceable. It is very difficult to enforce a policy where an employee could simply go to the bathroom and post a comment. In terms of the prohibition against use of social media in the workplace, in the most recent survey, about 43 percent of employers permit access to social media sites for all employees. That’s actually a decrease from the number in the 2012 survey showing that 52 percent of employers permitted all employees to have access to social media sites at work. There seems to be a pattern emerging where employers are limiting use of social media sites at work.
Editor: To what extent is it permissible to refer to social media sites when taking disciplinary action against an employee or prior to hiring an employee?
Ornstein: It is always permissible to do so, but extreme caution should be taken when referring to social media sites. In particular, an employer would be well-advised to consider carefully the evidentiary weight to be given to information obtained from a social media site. The information that an employer relies on 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 inquiry. Relying on information contained in social media sites, particularly for hiring decisions, creates a risk of discrimination because either someone is treated less favorably by reason of a protected characteristic or there’s indirect discrimination that has a disparate impact on a particular group. Finally, any use of social media sites in making employment decisions must comply with data privacy requirements, including in relation to the secure storage and deletion of information after it is no longer needed, as well as any internal policies about monitoring such sites.
Editor: What steps should employers take to limit the risks of social networking abuses?
Ornstein: My strong view, as I said before, is to have clear policies containing rules, guidelines and examples of what is acceptable and what is not acceptable. These policies should be coupled with training. There’s nothing better than training to enforce the message set out in a policy.