Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Another day, another story about an employee in hot water over Facebook posts. 

It's becoming so commonplace that I must admit a bit of Facebook Fatigue on the subject.  I mean, how many stories do we need about an employee who says something that they think is private on Facebook only to later discover that what goes on Facebook, just doesn't stay on Facebook anymore?

So, I'm ready to call it: Social media has officially taken over the workplace. You may not have seen the signs, but it's here and it's here to stay. 

If your workplace doesn't have a social media policy, you need one.  Not 2 years from now. Now. Employees (particularly those with smart phones) can access Facebook anytime, anywhere and without guidelines, misuse and abuse is bound to occur. (Do you really think those firewalls you've set up are stopping much of anything anymore?)

But beyond that, I'm also calling for a bit of restraint now on the reporting of such incidents. It just doesn't seem as newsworthy anymore. Employees get into trouble for a whole host of reasons and we don't highlight those situations each and every time they occur. It strikes me that the "Facebook posting syndrome" is falling into the category of things we ought to expect in a workplace.

In other words, it's the new norm. The novelty of an employer having to deal with an employee's Facebook post that has consequences in work is wearing off.

And for employers, it should as well.  These types of episodes (to generalize) show more of a lack of common sense and discretion than anything else.  That's not to say that you shouldn't take them seriously -- you should. But we also need some perspective on this; it's often not the worst offense that occurs in the workplace and often times that behavior can be easily modified through some counseling and warnings.

Think back to 10-15 years ago when e-mail was introduced; in some instances, employees were misusing it through the sending of inappropriate jokes or offensive pictures and stories.  Employers went through a period of re-educating the workforce about how e-mail should and should not be used in the workplace setting.

I think we're going through the same learning process on social media.  So use this time period as a way to educate your employee population of your expectations as an employee in this social media age.  And anticipate the Facebook issue in your workplace. With 500 million users on it, it's not likely to go away anytime soon.

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Yesterday, I had the opportunity to speak to a large group at the Connecticut Community Providers Association in Rocky Hill about social media and compliance issues.

The Connecticut Community Providers Association represents organizations that provide services and supports for children and adults with disabilities and significant challenges including people with substance use disorders, mental illness, developmental and physical disabilities.

It was a very energetic crowd and from the questions that were asked, it is clear that social media has made it to the mainstream.  No longer can companies believe that the firewalls that they have on the workplace computers will keep them "protected" from social media.

Why? In part, due to the influx of smart phones (iPhones, Androids, Blackberrys etc.).  Now, individuals can access Facebook, LinkedIn, Twitter, Foursquare from their phones completely circumventing the work.

The problem is compounded in part because some of these smaller organizations allow (and may encourage) people to buy their own smart phones to use for work-related calls.  This saves the company money, but it also complicates matters because employers feel that they cannot "regulate" someone's personal phone.

There are different ways to tackle this and companies seeking to update their "Acceptable Use" or "Electronic Communications" policies should seek some additional legal guidance. 

One way to address the issue may be that, in exchange for the privilege of allowing an employee to access work computers through their personal smart phone, the employee has to give the company access to the phone as well and be subject to workplace rules.  This can be done through a written consent or notice.

Another issues that may arise is in the course of a lawsuit. Is the content of that personal smart phone subject to discovery rules? And if so, how is the company supposed to get the data?

Using personal smart phones for work may be a cheaper, more efficient way to run the organization, but without thinking through all of the implications and developing a strategy for usage, it may create more headaches for a company in the long-term. 

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