Businesses can balance the benefits of social media while avoiding legal risks

One of the biggest attractions of social media also gives rise to its biggest risk for businesses.

"People want to act more quickly and in ways they would never do face-to-face," explains Jackie Ford, a partner who focuses on labor and employment law for Vorys, Sater, Seymour and Pease LLP. "It's this myth of a closed environment when you are on social media, particularly Facebook."

Ford adds, "Almost every issue of social and technological change plays itself out at work," which is why employers must be on top of social media. As the use of social media has grown, claims have arisen across diverse areas such as employment, trademark and contract law, which can lead to litigation from private parties, but also government enforcement.

As one example, OhioHealth utilizes Facebook, Twitter, YouTube, Google Plus, and Instagram, and emphasizes the importance of social media as a contributor to its online presence. But the Columbus healthcare system finds "people sometimes respond spontaneously without being as thoughtful as they should be, and that's one of the reasons why we developed a policy specifically for it," says Nate Rogers, VP, marketing and communications.

Sara Jodka, senior counsel, focusing on data privacy, labor and employment law in the Columbus office of McDonald Hopkins LLC, echoes Ford's observations and advises when "you deal with social media, you have to get creative."

Typical areas of social media litigation risk involve general employment law, privacy and false advertising.

General Employment Law

Some of the most frequent employment law issues arising from social media are discrimination, retaliation and harassment claims.

Concerns have appeared under the National Labor Relations Board's interpretations of the National Labor Relations Act, which protects employees from retaliatory or adverse employment actions, under a concept commonly known as "protected concerted activity."

Employment law also protects social media use by non-union staff or employees acting alone. For example, an employee posting a Facebook comment about being upset over a new policy at work is protected concerted activity, Ford states.

Widely regarded as increasingly pro-labor, the NLRB ruled in December that employers must provide employees' email addresses to union organizers within 72 hours of a petition being filed for a union election, says Samuel Lillard, of counsel with the Columbus office of Fisher & Phillips LLP.

That ruling is "causing employers to rethink their email systems," Lillard says. The new rule would apply to any personal email addresses an employer collects from employees as well as company-provided email addresses, Lillard notes. "If you have it, you have to give it." The email-provision ruling is set to take effect April 14 but is being appealed, which could delay enforcement.

Further, employers are increasingly using social media sites like LinkedIn, Twitter, and Facebook to conduct background checks of candidates. While these searches can be valuable, Ford warns employers should have protocols in place to screen out information that might violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of characteristics such as race, sex, or national origin.

Ford and Jodka note that another danger with background checks is compliance with the Fair Credit Reporting Act. To the extent an employer uses a third party to perform a criminal or credit background check to make a hiring decision, the employer must follow certain procedures and inform the applicant.

Confidentiality and Privacy

Privacy claims are particularly prevalent in certain industries, such as healthcare, where the identification of patient information is protected under the Health Insurance Portability and Accountability Act and state common law.

Jodka notes employers should watch a case filed last summer in Hamilton County. A plaintiff sued the University of Cincinnati Medical Center after an employee posted the plaintiff's medical record and diagnosis of syphilis to a Facebook group. The case does not allege HIPAA violations, but rather invasion of privacy and negligence, which Jodka surmises may be a strategic move to avoid federal court and the low penalties imposed by HIPAA as well as to obtain a county jury.

False Advertising and Endorsements

Another area of concern for employers is prohibitions against false advertising and endorsements, which is regulated by the Federal Trade Commission. Jodka states that when employees market their businesses on social media, they must disclose their identities as agents of the company they work for or risk penalties imposed by the FTC.

Best Practices

Ford says employers should answer a few questions before implementing social media for business purposes: what is the platform, how does it work, and why am I using it? "Just because you can use social media doesn't mean it is building business, so use it in a way to build your business."

After answering those questions, employers should create a social media policy that addresses two audiences: employees who work on social media for the company and general employees-complementing other company policies, such as those addressing harassment or ethics.

As to the provisions that apply to both audiences, there are prohibitions against obvious wrongdoing. However, businesses must be careful because the NLRB has found some employer social media policies "illegal on their face because they go too far in shutting down certain speech preemptively." These include policies that have blanket prohibitions against employees using the logo or trademark, or criticizing the company. Thus, when Jodka reviews an employer's social media policy, she ensures it contains "narrowly tailored language only restricting the commercial use" of copyright-related matters.

Then, there are provisions that will apply only to employees who work on social media for the company. Beyond the proper decorum that proscribes what, when, and how they can post, there are two common issues employers should be mindful of. A provision clarifying that social media accounts and content are the property of the company is important, says Jodka, noting employers have sued former employees for taking the company's Twitter followers.

Both Jodka and Ford agree that for hourly employees, the company must ensure the time employees use to post social media is being properly tracked, or risk running afoul of the Fair Labor Standards Act.

Finally, employers should train their employees. OhioHealth's Rogers says the health system has "social media components in our on-line education modules that all associates must re-take annually."

Providing specific examples of what the policy means will ensure people are paying attention, says Jodka. She also notes some insurance companies will offer reduced rates or credits for providing social media training to employees.

Lawyers are getting increasingly creative in bringing claims in the digital age. Jodka cites an appellate case out of Illinois, where the court held Southwest Airlines liable for the conduct of its employee who used the company's communications platforms-largely e-mail and text messages- to harass the plaintiff. While the employer was absolved of liability under the Communications Decency Act, the plaintiff also sued under a negligent supervision claim and won.

Jodka says employers "need to be on the lookout for the next thing, the next wave, and what could potentially happen next."

Paige Kohn is a freelance writer.