Perils of the Electronic Grapevine; Is Your Company Protected?

When a company establishes its employment policies and procedures, there is a tendency to consider the task completed, at least for the foreseeable future. While that might have been an acceptable approach several years ago, technological changes require companies to be alert to new and different issues.

Such is the case with Facebook, MySpace, LinkedIn, Twitter, blogs, and a host of similar sites that provide a forum for a variety of communications from social, to networking, to venting. Many of these sites can serve legitimate business and marketing purposes. However, with stronger and faster search engines available today, a seemingly obscure web posting can be readily turned up via a Google search about your company. Thus, such postings as a frustrated employee’s late-night rantings or a salesperson’s compromising party pictures may end up in front of customers just as prominently as if they were published in a newspaper. A   simple Google search may, unknown to you, turn up web content that has the potential to irrevocably damage your hard-earned business reputation.

Is it possible to prevent such problems rather than trying to deal with their negative effects after the fact? While it is not possible, or perhaps even advisable, to try to stop employees from exercising their personal communication freedom, it is most certainly appropriate to enact policies that limit employee   communications on company time or in a manner likely to damage the company or hurt other employees. Such policies should include serious consequences for violations, to act as a deterrent and make employees think twice about whether it is worth risking their jobs to post vitriolic comments or other inappropriate material.

One of the more notorious cases dealing with online posting involved the CEO of Whole Foods, who made anonymous postings concerning his company and attacking Wild Oats Markets, an acquisition target. After Whole Foods agreed to purchase Wild Oats, it amended its policies to prohibit employees from posting   information about the company or its competitors on Internet chat rooms, message boards, blogs, or in similar forums, without company approval. When an airline’s employees recently posted electronic messages on Facebook making derogatory comments about airline safety, cleanliness, and even passengers, the airline was able to fire the employees because it had policies in place that prohibited such conduct by employees.

Such cases indicate the importance of developing relevant policies and procedures to deal with new means of communication before problems arise. They also raise questions about the limits of online postings and employer policies and procedures addressing such issues.

Strauss & Troy has assisted a number of companies in revising their confidentiality and technology policies to address these new issues. In considering an effective policy, companies should consider the following:

  • Prohibiting employees from using the company name or any identifying information, symbols, logos, or marks on any non-business communications, whether from the office or any other site;
  • Prohibiting employees from disclosing, directly or indirectly, confidential or proprietary information relating in any way to the company, its clients/ customers, employees, or vendors;
  • Prohibiting blogging or other Internet posting activities, other than for legitimate company purposes, while at work or on company computers;
  • To the extent employees have Facebook, My Space, LinkedIn, Twitter, or similar online accounts listing the company as their employer, the policy should require a clear disclaimer stating that all views or opinions are those of the employee and do not represent the views or opinions of the company.

It may be tempting to prohibit any communications relating in any way to the company, but there are some legal limits. For example, the National Labor Relations Act does not allow employers to prohibit employees from participating in discussions regarding wages, hours, or working conditions. Various states, including Ohio, also have so-called Whistleblower Acts that protect employees from disciplinary action based on reporting certain types of information about their employers. To avoid problems in that regard, we recommend a policy requiring employees to report actual or suspected company wrongdoing in writing to one or more designated members of management.

Subject to these limitations, it is certainly in every company’s best interests to adopt a policy prohibiting inappropriate electronic or other communications about the company and stating clearly that violations will subject employees to disciplinary action, up to and including termination of employment.

Paul Calico is a member of the Strauss & Troy Employment Law Group and regularly advises companies on a variety of employment law issues, including Policy and Procedure Manuals and Employee Handbooks. He is also available for onsite seminars for managers, supervisors, and employees. Paul can be reached at (513) 629-9422 or at pbcalico@strausstroy.com.

This entry was posted in Corporate | Business, Published Articles, Volume 11, Issue 3