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TWEET: ‘I’m About to Testify in My Defamation Case!’

November 3, 2009

NEWARK, N.J., Nov. 3 /PRNewswire/ — Facebook and Twitter represent a breakthrough in marketing and communications that can help businesses connect with others in a flash. From the standpoint of employer liability, however, what happens when such online sharing crosses the line into disclosure of company secrets, office gossip or a provocative video of a drunken co-worker?

“Inappropriate and unwise use of online social networking sites like Facebook and Twitter is a growing source of liability risk for employers, including discrimination, defamation and retaliation claims,” said Joseph P. Paranac, Jr., a shareholder in LeClairRyan’s Labor and Employment Group, based in the firm’s Newark office. “Gone are the days when office workers just huddled at the water cooler to complain about the boss or whisper about each other. Today’s highly wired employees are constantly blogging, YouTubing, Twittering and Facebooking, and this has created a thicket of new legal challenges for employers.”

Paranac outlined some of those legal challenges on October 15 while speaking to an audience of management executives, human resources professionals and corporate attorneys during “Key Issues in Labor & Employment Law,” a LeClairRyan seminar at The Park Avenue Club in Florham Park.

Social networking sites such as LinkedIn, Facebook, MySpace and Twitter certainly do have an upside for employers, he noted. For example, job applicants often use social networking sites to communicate directly with human resources, and businesses now make effective use of the sites as marketing vehicles that allow them to target specific audiences.

However, firms that give employees wide latitude in the use of these sites during working hours do so at their own risk. A drop in employee productivity is just one of the potential downsides, Paranac told the audience. “Some employees will spend hours on Facebook updating their personal profiles, doing quizzes and puzzles, chatting and sending personal e-mails,” he said. “Some might even expose the company to cyber-security risks by downloading and using suspect applications.”

Common sense would seem to dictate that no employee would post libelous or slanderous statements about a boss or colleague to a Facebook blog, send out a “tweet” containing proprietary information or upload a video to YouTube in which a manager used sexist or racist language. However, employers who think their employees will always act according to the dictates of common sense, would do well to look at the growing body of evidence to the contrary, Paranac said.

“Take the case of the college student who recently received a job offer from Cisco. He sent out a tweet that read, ‘Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work,’ ” Paranac recounted. “The student failed to click the ‘privacy’ box, which would have caused the tweet to be sent only to friends. A Cisco employee saw the tweet, and the company later rescinded the job offer.”

The news media are full of such stories, Paranac said, and employers are spending more of their time dealing with employees’ improper use of the Internet, e-mail or social networking sites. According to recent surveys, for example, 52.4% of employers have disciplined employees for such misuse and 31.6% have fired employees for it.

Internal e-mails, in addition to being subject to electronic discovery, can be particularly troublesome from a liability standpoint. “Careless use of internal e-mail can lead to discrimination, defamation and retaliation claims,” Paranac said. “In one case, a Staples salesman was fired for allegedly padding expense reports. A company executive then sent a mass e-mail to 1,500 employees informing them that the employee had been fired for violating the travel and expense policy. The salesman sued Staples for libel.”

In order to have a successful policy on the use of social networking sites, Paranac told the audience, employers should stipulate that:

  • Employees may not comment or use any confidential information about the employer or discuss internal matters.
  • Use of online social networks should be limited to non-working hours, unless the use is for legitimate business purposes.
  • Employees’ comments should not be discriminatory or harassing. Similarly, they should not be disparaging or defamatory to the employer’s business.

The veteran attorney also offered the following elements of a successful Internet and e-mail policy:

  • Employees should be trained on electronic communications equipment parameters and prohibitions.
  • All business systems and company-issued electronic communication equipment and data belong to the employer.
  • Systems and equipment must be used for appropriate and lawful business purposes only.
  • Employee use is subject to review/monitoring by the employer and employees who use employer equipment have no expectation of privacy.
  • Use of systems and equipment for harassment, discrimination, or defamation is strictly prohibited.
  • Disclosure of employer confidential information is strictly prohibited.
  • Warn employees of the penalties or policy violations.
  • Obtain a signed acknowledgement of employee receipt of policy.
  • Include a procedure for reporting violations.
  • Enforce the policy!

About LeClairRyan

Founded in 1988, LeClairRyan provides business counsel and client representation in corporate law and high-stakes litigation. With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has more than 300 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit www.leclairryan.com.

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