Hopefully, you are not discouraged after reading Part 1 of this series, which examined recent state legislation restricting employer access to the personal social media of employees. In those 12 states where restrictions have been placed on employer activity, employers, especially those operating in more than one state, need to take care. And, if Congress gets into the act, then all employers will face consequences.
However, based on my examination of legislative activity in 2012 and 2013, if trends hold up, I believe that few if any other states will follow suit and Congress will not enter the arena. Yet, given that there are laws on the books, and that privacy remains a grave concern to all, the wise employer will take appropriate steps to forestall any adverse action and, at the same time, end up with a real benefit, namely, an improved focus on protecting its own proprietary information.
At least one bill was introduced into Congress this 2013. However, unlike the quick reaction of some states, Congressional action may not come, if at all, for quite a while. This can be viewed as the glass being both half empty and half full. With no federal law, the impetus for state action may die down. However, without a uniform federal standard, employers with operations in several states are likely to find themselves straddling different fences.
Unfortunately, the Congressional bill which was introduced, titled the Social Networking Online Protection Act (SNOPA), would not solve the uniformity question. Rather, it would add another layer of enforcement, because it would authorize the U.S. Secretary of Labor to investigate complaints and issue penalties as high as $10,000, yet not preempt the existing state laws.
I did say there may be a bright side to all of this, and that is if it encourages employers to review and update their internal procedures related to social media and the protection of their proprietary information. The existing laws for the most part recognize an employer’s right to investigate unauthorized disclosures of its confidential information by employees.
Thus, for those employers who are concerned about improper downloading or divulgence of their proprietary information, you may wish to consider these recommendations:
- Adopt clear guidelines in your employee procedures handbook – you do have one, don’t you? – that prohibit divulging company proprietary information in any way without permission, and provide examples of the kinds of improper activity that will result in a disciplinary response.
- Periodically remind employees of their obligation not to divulge the company’s proprietary information in any media.
- Institute a monitoring program of social media sites which are popular and to which the employer can gain access independently.
- When using social media for the company’s business, be sure that such accounts are registered in the company’s name and that employees who have access on behalf of the company fully understand who owns it and that all the content belongs to the company.
By identifying clear guidelines as to what you expect of employees concerning the protection of the company’s proprietary information and monitoring social media in general, employers should be able to protect their legitimate interests without running afoul of the minefield of legislation I have described.