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"10 Tips to Deal with Employee Discipline for Social Media Use"

Jack Graham and Lana Rafuse at McInnes Cooper have written a legal update for the law firm's newsletter titled, "10 Tips to Deal with Employee Discipline for Social Media Use" (March 1, 2012).

The tips are designed to assist employers in "drawing the line" on social media use and thus be in a position to discipline employees who go over the line. Taken directly from the article, their tips are:

  1. Policies. Most employers know that policies regulating technology use in the workplace, especially when it belongs to the employer, are necessary. Make sure you draft or update policies on acceptable use of any social media or communications technologies no matter who owns the technology or where employees use them.
  2. Handheld Communication Devices. Include rules for acceptable and prohibited use of handheld communications devices in your policies, whether they belong to the employer or employee. Distraction is a very real safety issue with these tools. For example, studies have determined a truck driver takes his eyes off the road for an average of five seconds when texting; this can equate to traveling the length of a football field. The risks are obvious.
  3. Privacy Education. Educate employees on the diminished expectation of privacy on the Internet.
  4. Reasons for Policy. Clarify to employees the legitimate business reasons for your social media policy and the potential consequences for violations.
  5. Communicate Regularly. Communicate your policy and expectations to your employees, and refresh periodically. They should sign off on their knowledge and acceptance of the policy.
  6. Focus on Performance. When disciplining employees, focus on the impact on job performance rather than the circumstances of the off-duty conduct. If your employee's social media activity truly puts your organization's business interests in jeopardy, courts are more likely to sanction discipline.
  7. Be Even-handed. Apply the same level of scrutiny across the board and be consistent with discipline for comparable offenses. You can't suspend one employee for social media antics and ignore another under similar circumstances.
  8. Confidential Information. If you need to protect your company's confidential information and trade secrets, have employees sign nondisclosure agreements rather than relying on policy statements.
  9. Intellectual Property. If you use social media for marketing or other business communications, use intellectual property agreements to spell out clearly that the employer owns and controls all the important elements, including accounts, content, "friends" or followers, etc.
  10. Legal Advice. Get legal advice before firing or disciplining a worker for off-duty activity. You may be at risk of more negative repercussions that merely being "unfriended" by the offender.

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