In a recent communiqué, adult industry attorney Dan Pepper of Pepper Law Group, (www.informationlaw.com), discussed several of the most important ways in which companies can be harmed by their employee’s use of social media.
Fundamental to understanding the threat is realizing that social media posts can often include commentary about a person’s employer, and its products or services — and even when these posts are not negative in nature, they can still cause problems for employers.
Finding out later that an employee or independent contractor owns a Twitter handle and associated posts can be a painful lesson for a company. —Attorney Dan Pepper
“For example,” Pepper states, “you should make sure employees know it’s improper to post prematurely — on personal or work websites — about product launches or other sensitive information.”
While the untimely release of trade secrets can be combated by educating employees about proper safeguards for handling confidential information, even an overly kind word can be problematic, if it is seen as an undisclosed commercial endorsement.
“Employees who puff or exaggerate a company’s products or services — or even provide a completely honest review — without disclosing their employment relationship, run the risk of subjecting the company to administrative action by the FTC,” Pepper says, explaining that many companies face various forms of liability due to employee posts, including the potential for claims of deceptive trade practices and false advertising due to posts by employees or paid third parties (affiliates) in social media, and on review sites.
Pepper also warns employers to use caution when examining the social media profiles of potential employees, to avoid claims of discriminatory hiring practices.
“Limiting the amount of personal information gathered via social media and restricting who gathers it are two ways to reduce the risk of such claims,” Pepper states. “Other best practices include maintaining consistent practices for all candidates and ensuring that the person who makes the ultimate decision does not access protected or inappropriate information.”
As a strategy for helping to mitigate several other negative effects of social media, Pepper recommends defensive brand-name user registrations on social media sites.
“This is one of the best ways to prevent trademark infringement; it bars user-name squatters and other infringers from controlling the user names and perhaps damaging the company or brand,” Pepper stated, adding that “Proactive registration is much less expensive than attempting to recover the user name later.”
As for what else can be done, Pepper cautions employers that the National Labor Relations Board has determined that certain posts by employees may be protected speech, which if resulting in termination, could be grounds for a lawsuit, and says that it is vital for companies to include social media policies in its employee handbooks.
“A well-drafted social media policy … should address ownership of social media accounts, user names, posts, and other content,” Pepper concludes. “Finding out later that an employee or independent contractor owns a Twitter handle and associated posts can be a painful lesson for a company.”
