The use of social-networking Web sites, such as Facebook, Twitter, LinkedIn, and MySpace, has exploded exponentially. Because of that, companies need to be aware of the potential legal ramifications of their employees’ online social-networking activities. Indeed, employees’ online communications, both inside and outside of the workplace, can place the company at significant risk and trigger various laws.

As an employer, turning a blind eye to employees’ social-networking activities can spell trouble for the company down the road. Supervisor-subordinate online friendships are of paramount concern because the information that is imparted or exchanged between supervisor and subordinate or the ways in which they interact online may make it much easier to establish claims of discrimination or harassment, or claims that certain disability or leave laws, such as the Americans with Disabilities Act or the Family and Medical Leave Act, were violated. Through these online friendships, supervisors are likely to learn quite a bit more personal information about an employee than they ever would have known in the course of their regular employment relationship.

For instance, on these Web sites, individuals often times list their age or religion or post information about their or a family member’s medical condition. If a supervisor is online friends with this person, or if the employer is otherwise monitoring an employee’s online profiles, they could later subject themselves to a claim that they based an adverse employment decision on this impermissible information.

Supervisors and subordinates may also interact with each other differently and, perhaps, more casually online than they ever would do within the workplace. Such casual banter may lead to talk of a sexual nature, which ultimately might make it easier for an employee, when something goes wrong with her employment at a later date, to bring a harassment claim against the company.

Defamation claims are also a concern. Employees’ unchecked negative viewpoints about their co-workers or their employer’s competitors could create vicarious liability for the employer.

Further, a business’s overall reputation can be negatively impacted by the online postings of its employees. Employees may identify the name of the company they work for on their personal online profiles or post their employer’s logo or pictures from their employer’s events to their personal profiles. Delta Airlines realized this the hard way when it discovered that one of its flight attendants had posted very suggestive pictures of herself in a Delta uniform, on a Delta airliner, to her blog, which was not exactly representative of the kind of image Delta wanted to portray to the general public.

Even worse would be a situation where an employee posted confidential or proprietary information about the business on their personal profile. Such a situation raises special concerns for publicly traded companies because posting certain confidential information may violate the Security and Exchange Commission’s regulations.

In light of both business and legal liability concerns, employers should be aware of what their employees are doing and saying online. Employers that monitor their employees’ online activities, both inside and outside of the workplace, however, must bear in mind that such monitoring may implicate employee privacy issues as well as trigger potential violations of the National Labor Relations Act (NLRA).

With regard to privacy issues, Massachusetts has a privacy statute that provides that a person has a right against unreasonable, substantial, or serious interference with their privacy. Privacy rights of an employee are balanced against an employer’s legitimate interest in the sought-after information and can be diminished through an employment policy that expressly provides that employees should have no expectation of privacy in their online communications.

With regard to NLRA concerns, all employees, whether or not they are unionized, have the right to engage in concerted activities for the purposes of mutual aid or protection. Known as ‘Section 7’ rights, employees are engaged in protected activity when complaining about management or working conditions, including their wages, benefits, work hours, or assignments. Therefore, employers should be very careful before disciplining employees for using social-networking Web sites to discuss or complain about the terms and conditions of their employment.

Reducing a business’s overall risk of liability related to employees’ social-networking activities can be accomplished by implementing a social-networking policy. Such a policy should prohibit certain online conduct, including the use of social-networking Web sites while at work, the disclosure of any confidential information online, and the use of company information or logos on personal sites and in blogs. The policy must expressly state that employees should have no expectation of privacy in their social-networking activities, even if the employee has made their site ‘private.’

Furthermore, employers should provide supervisory training which specifically covers the types of issues that arise when supervisors have online friendships with those employees with whom they supervise.

Amy B. Royal, Esq. specializes exclusively in management-side labor and employment law at Royal & Klimczuk, LLC, a women-owned, boutique, management-side labor and employment law firm; (413) 586-2288 begin_of_the_skype_highlighting              (413) 586-2288      end_of_the_skype_highlighting.