On September 29, 2009, Littler Mendelson presented a webinar, hosted by HR.com, entitled, “Legal Perils of Social Media & Social Networking: What Every Employer Needs to Know.” Several of the attendees submitted questions by e-mail that could not be answered during the time allotted for the webinar. The answers to those questions are below.

Question: Because of the sketchy and inconsistent nature of HR policy around this topic, it seems reasonable for employees to ask for definition from their employers regarding use of social media to avoid being surprised should there be a potential issue. Would you agree?

Response: I would agree. The intersection of social networking sites and work is so new that accepted etiquette, custom, or norms have not yet developed. Employers can address this problem by establishing a policy that provides easily understood guidelines for employees’ social media activities whether authorized by the employer or not. Training also is very important in this area. Employers need to train managers and employees on how to respond to and handle the many complicated issues raised by the intersection of work and social media activity.

Question: What if employees are using their cell phones for social networking, not utilizing company technology? And what if they are doing it on their own times: breaks and lunch?

Response: Employers can establish guidelines for employees’ off-duty social media activities even if employees are using their own cell phones, laptops, desktops, or other personal devices. As discussed in the webinar, there are several laws that might restrict an employer’s ability to take adverse action based upon an employee’s off-duty social networking activities. These laws include, for example, the National Labor Relations Act, state laws that prohibit adverse action based on an employee’s lawful off-duty activities, the First Amendment for public employers, and anti-discrimination laws.

Question: Can you expand upon the scope of First Amendment protections and the Connecticut law that you mentioned during the webinar?

Response: One common misconception is that the First Amendment protects all employees against adverse action based on their speech. In fact, the First Amendment protects only public employees. However, Connecticut has an unusual law (Conn. Gen. Stat. 31-51q) that extends First Amendment protections to private employees. A private employer violates the law by terminating a Connecticut employee on account of that employee's exercise of rights guaranteed by the First Amendment--provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer.

Question: Can employees assume that because the company hasn't blocked a social site from being accessed that it must be okay for them to use it during the day?

Response: Employees might make that assumption if the employer does not have any policy addressing Internet use generally or social media use in particular, or if a general Internet policy permits incidental non-business use of the employer’s Internet access. An employer can defeat the assumption without blocking access to social media sites by specifically informing employees in a policy that use of the employer’s electronic resources to access social media sites for non-business purposes is prohibited. For the policy to eliminate an assumption like this one, management and human resources professionals need to communicate about, and consistently enforce, the policy. In this regard, HR and managers should work together to remain well versed on best practices and ongoing developments in this area.

This entry was co-written by Philip L. Gordon and Kevin P. O'Neill.