While it is not groundbreaking news, is it safe to say that the Internet has changed the way we operate our business and personal lives over the last fifteen years? That question has a pretty obvious answer; the more current version of the same inquiry is whether or not social media sites such as Facebook, MySpace, Twitter, LinkedIn, and many others, have changed the way we organize our time, our social calendars, our business calendars, and correspondence with other business and non-business individuals.

I submit that use of many of the aforementioned sites, including engaging in “Googling” is such an integral part of our business lives, that we would be hard pressed to recall our lives prior to the invasion of the Internet.

The purpose of this article is to provide to employers, a general framework for company policies on the topic of management and employee use of on-line services intending to help the business. Do not mislead yourself by dismissing the importance of this article by simply believing that you have a company policy governing “personal use of your business computers.” This article reaches far beyond the scope of simple personal use of a company’s computers. Often times, the damage by employees is done during “off hours” on their own personal computers. This then begs the question, “How can I or do I have a right to control what my employees do on the Internet during off hours in the privacy of his or her home or home computer?”

Eye-Opening Statistics

Facebook advertises that it has over 400 million active users. There are millions of blogs where individuals can express their own opinion on a plethora of topics, which are, often times, unabated, unsupervised, unedited, and uncensored. The estimated number of Twitter users range between 14 million to more than 70 million. We are told that 75% of the organizations, interviewed in Cisco’s 2009 survey, primarily use social networks as a consumer based social media tool. Thirty-one percent of all American CEO’s are on Facebook. Moreover, it seems that social media sites are starting to take over and, for some, have become a main stay for creating, publicizing, and viewing all of our daily events and information. ComScore’s 2009 digital year-end review shows that social networking now accounts for 11% of all time spent online in the U.S. A recent Gartner report stated that by the year 2014, social networking services will replace email as a primary vehicle for interpersonal communication for 20% of business users. Additionally,

• 80% of companies used, or plan to use, LinkedIn as a primary tool to find employees during the course of the year; and

• Nearly two-thirds of marketers claim to use social media for five or more hours each week during campaigns, with 39% using it for more than ten hours per week.

Fifty-five percent of employees admit to periodically logging into their facebook accounts during work hours, and 24% of employees spend more than one hour on social networks during working time. In 2009, 54% of US companies have decided to block social networks at work and 8% have already fired employees because of the use of Facebook during working hours. Three in every four managers surveyed believe social networking sites put their firms and their brand at risk. Fifteen percent consider the risks of social networking sites at the board room level, and only 17% have implemented risk mitigation policies or programs.

In a July 2009 study conducted by Nucleus Research, the study revealed that Facebook affects employees’ productivity at work. In order to explore the business productivity impact of Facebook, 237 randomly selected employees were interviewed about their use of Facebook. The results of that study showed that 77% of employees have a Facebook account and the average time spent on Facebook was 15 minutes, with some of the employees spending up to two hours on the social networking site each day.

As for the reason the employees stated for using Facebook during work hours, only 13% of employees had a business reason (e.g., to promote a product or an event), while an astounding 87% of employees could not define a clear business reason for using Facebook during hours they should have been working.

Given these numbers, companies can reasonably estimate average loses of 1.5% in employee productivity. While many employers are already dealing with low profitability rates, they cannot afford activities that decrease employees’ productivity.

Employer monitoring of employee Internet use is sky rocketing. Based on the Deloitte LLP 2009 survey, 66% of employers in the survey stated that they watched workers’ internet connections and 45% stated that they tracked content, key strokes, and time spent at the keyboard. As expected, a high degree of management tracks instant messaging in chat rooms, monitor blogs, emails, text messaging, but most importantly, 10% keep an eye on social networking sites. This is most likely done to determine what employees, disgruntled ex-employees, competitors, customers, and critic’s are posting about the company, its people, products, and services.

Do I have your attention yet?

Consider the following categories of reason’s you want to monitor employee activity on computers:

1. Monitoring employee conduct to prevent reputation damage of the company;

2. Monitoring cyber defamation;

3. Monitoring for breaches of restricted covenants and disclosure of confidential information;

4. Monitoring to prevent improper “friending,” “endorsements,” and linkedin recommendations; and

5. Monitoring job applicants’ blogs, social networking profiles, and video posts.

Termination of Employees Based on Social Networking Activities and Freedom of Speech

While the legal implications of social networking in and out of the workplace have yet to be fully realized, one area that has seen substantial litigation is whether employees “posts” on social networking sites are protected by the First Amendment, or whether employers can freely terminate employees for such posts.

Generally, the speech of public employees is protected by the First Amendment, and therefore not a valid basis for termination, if the employee in question is speaking as a citizen addressing a matter of public concern, and the interests of the employee in such matter outweigh the government’s interests in efficiency of operation. Based on existing case law from jurisdictions throughout the United States, it seems that social networking activities that result in termination and lead to litigation are very often personal in nature, and as such will rarely meet the standards of protected speech.

Courts have held that the following actions were unprotected, and consequently found that the employee in question was not wrongfully terminated:

• The creation of a private MySpace group where employees vented about their workplace and superiors;

• A probationary firefighter’s posting to MySpace of unauthorized fire department photographs as well as personal modeling photographs; and

• A student-teachers MySpace posting referring to students and supervisors, and containing a picture of the student-teacher drinking alcohol (the student-teacher conceded that such posting raised only personal matters.

Again, private employees, on the other hand, are generally at-will employees, and therefore can be terminated at anytime, with or without cause. Consequently, presumably most, if not all social networking activities by private employees are deemed unprotected speech, and can form a valid basis for termination. However, courts in at least one state, New Jersey, have held that at-will employees cannot be terminated for reasons that implicate a “clear mandate of public policy.” This requires that the termination of the employee must implicate more than just the private interests of the parties. New Jersey courts, though, have yet to address whether a private employee may base a claim for wrongful termination on an interference with constitutionally protected speech.

Developing a Social Network Policy

As with any employee policy, the particular needs of an employer must be taken into consideration when drafting a social networking policy. There is no “one size fits all” when it comes to adopting a social networking media policy. It is recommended that all employee handbooks and posted policies include a social networking media policy. Employers should consult with their legal counsel to determine whether their policy conflicts with or considers applicable “off duty” statutes adopted by state law, and to ensure that the policy conforms with federal law.

The following list, which not necessarily comprehensive due to the unknown nature of your business or how you operate your business and the electronic devices provided to your employees, contains factors and considerations that an employer should consider incorporating into its policy:

1. Make it clear that employees cannot identify themselves as representatives of the company on their personal profiles or in their personal blogs. If you allow them to identify him or herself on the work related social networking sites, he or she should be limited in what they can say about the company and how they say it.

2. Blogging or posts should not contain foul or offensive language, or be disrespectful to the employee’s co-workers, the company, customers, competitors, or management.

3. Employees should not use company images or logos without prior consent of company management. All information published on a blog or other internet postings must comply with the company’s confidentiality and non-disclosure policies.

4. A strict policy on the use and misuse of proprietary information and the customer lists should be made clear in an employer’s policy handbook, and such policy should apply to all social networking blogs, posts, and tweets.

5. A violation of the policy will result in disciplinary actions up to and including termination of a violating employee’s employment.

6. No personal information, scheduling, correspondence, or opinions should be posted or exchanged on company issued cell phones, iPads, laptops, computers, Blackberrys, etc.

The author recommends that employers make it a regular practice to review its social networking policy on an annual basis. Since technology is constantly evolving and developing, so too should an employer’s social networking and media policy to keep current with new legal and employments considerations. If an employer adopts and implements the considerations set forth in this article, an employer should be better equipped to prevent, limit, and handle issues relating to an employee’s use or misuse of social networking websites.