Although blogging and social networking may benefit companies in many ways, employers have begun taking note of important legal risks of employee use of Web 2.0. Last week we posted about "reducing employer risk concerning social media use - disparagement."  This week we are discussing reducing risks associated with employee social media use in the context of severance and settlement negotiations. 

In this context, the payment of severance to or resolution of threatened or actual litigation with an ex-employee provides an opportunity to reduce risks of communications that may harm an employer, its employees and others.  For example, an employer could condition severance or settlement on the employee’s representation that s/he has not disparaged the employer, its executives, board members, employees, or products and services. If the employee has published such information and cannot make such a representation, it is virtually impossible to “unring the bell.” But if such disclosures have occurred, the employer should consider whether to condition payments or continued payments of settlement or severance amounts, on the employee’s:

• Listing all disparaging communications and posts, the content and virtual locations of that information, and the recipients (if known).
• Deleting all offensive content from social media sites, if possible.
• Correcting misstatements contained in previous posts.
• Cooperating with the employer to assist in the takedown of all disparaging communications.
• Agreeing not to post any disparaging comment about the employer in the future.

An employer that includes such provisions in its severance or settlement agreements should also consider remedies for violation. It may want to bargain for equitable remedies such as injunctive relief or specific performance of certain provisions. Because proving damages for breach of a non-disparagement covenant of a severance or settlement agreement often is difficult or impossible, the employer also may want to negotiate for a liquidated damages provision that complies with applicable state law.

The development of social media has provided extraordinary opportunities for businesses to market, sell, evaluate and improve their products and services. But there are risks associated with the use of social media by employees of those businesses. And employers’ policies concerning the means and content of employee communications on social media sites should evolve even as social media itself evolves.