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Proskauer Study Recommends Corporate Best Practices for Navigating Challenges of Social Media Use in the Workplace

Despite increasing prevalence of social media, employers continue to grapple with ways to balance protecting their businesses with ensuring employee freedom of expression

November 14, 2012 (London, New York) – With more than three-quarters of companies using social media for business purposes and almost half allowing employees to use social media for non-business activities, a new report from global law firm Proskauer recommends corporate best practices for navigating the challenges of social media usage in the workplace.

These are some of the key findings from “Social Media in the Workplace Around the World 2.0,” the second annual global survey by Proskauer’s International Labor & Employment Law Group. Over the past two years, Proskauer has joined with other global law firms to collect nearly 250 responses from multinational businesses detailing their social media policies and practices. This report sets forth the 2012 research results and compares it with last year’s groundbreaking study. 

“As social media use continues to grow exponentially, it’s raising a thicket of thorny legal issues for employers,” said Daniel Ornstein, London Partner and co-head of the firm’s International Labor & Employment Law Group, who led the survey. “Although many companies have put in place policies governing employee social media use, there are a number of other risk management measures companies should be pursuing to safeguard their businesses while protecting their employees' right to privacy and freedom of expression.” 

Just how much of a legal issue social media can pose to employers can be seen in the following statistics. According to X1 Discovery, which monitors online legal databases of state and federal court decisions across the United States, there have been more than 300 published social media cases in the first half of 2012, not counting de minimis entries defined as cases with merely cursory or passing mentions of social media, and more than 689 published cases from 2010 through 2011. 

Among the social media best practices recommended by the report that companies should seek to adopt are these:

  • Have a dedicated and well-communicated policy on social media use that clearly sets out acceptable and unacceptable usage, both inside and outside the workplace as well as after employment comes to an end. The policy should be implemented in accordance with and comply with local requirements, especially privacy laws.
  • If employers choose to monitor social media usage by employees at work (as the survey indicates) have clear, express and well-communicated policies about the extent and nature of the monitoring. Ensure they comply with and are implemented in accordance with local requirements (again, especially privacy laws).
  • Any monitoring should go no further than is necessary to protect the employer’s business interests and should be conducted only by designated employees who have been adequately trained to understand the limits on what monitoring is permissible and comply with local privacy requirements, including in respect of the safe storage, confidentiality of and onward transfer of personal data.
  • Exercise extreme caution before relying upon information on social media sites to make employment-related decisions, such as decisions about recruitment and discipline. In addition to the danger of such information being inaccurate, relying upon such information creates the risk of unlawful discrimination, breaching data privacy requirements and infringing individuals’ rights to privacy.
  • Based on recent cases from around the world, an emerging issue is misuse of confidential information by employees via social media. As well as addressing this issue through social media policies, it would be best practice to amend provisions dealing with misuse of confidential information to explicitly cover misuse via social media.

Underlying the need for companies to adopt best practices governing social media are the report findings showing greater employee use of social media in the workplace for both business non-business purposes, in addition to companies viewing social media more favorably than in the past:

  • More than three-quarters of respondents use social media for business – consistent with the figure from last year’s survey – albeit, 10% of this year's respondents stated that they have only started doing so in the past year.
  • The number of employers that allow all employees access to social media sites at work for non-business use remains at around one-half, and about one-quarter of businesses allow some, but not all, employees access to social media sites at work for non-business use.
  • Employers now have more positive attitudes towards social media, particularly for non-business use. This year, more than 40% of employers considered it an advantage to allow employees to use social media for both business and non- business use. Last year, the figure was just over 30%.
  • There has been an increase in the number of employers that monitor usage of social media sites, from 27% to 36%.
  • The number of employers that have dedicated social media policies has increased from 55% to 69%, with the figures suggesting that most of those who have introduced new policies have them covering usage both at work and outside of work.
  • Like last year, nearly half of all employers have had to deal with misuse of social media by employees (or former employees). Despite this high level of misuse, only about one-third of employers currently provide training on appropriate use of social media, and only 17% have termination provisions with express protections against misuse of social media following employee departures.
  • Just over one-quarter of employers block employee access to social media.
  • About one-third of businesses have had to take disciplinary action against an employee for misuse of social media.

The Proskauer study also includes a summary of developing law around the world, as different jurisdictions take different approaches to workplace use of social media. In addition to conducting the survey from Proskauer offices in the United States, UK, France, China and Hong Kong, the firm worked with 14 other law firms to provide a summary of social media law in the following jurisdictions: Argentina, Brazil, Canada, Czech Republic, Germany, India, Ireland, Italy, Japan, Mexico, Singapore, South Africa, Spain and The Netherlands.

The Proskauer International Labor & Employment Law Group counsels clients on global labor and employment matters throughout the world based on a deep understanding of the different cross-border cultural and legal approaches to labor and employment law and sensitivity to the nuances and unique workplace issues that arise in different jurisdictions. The group’s lawyers are based in the firm’s offices in the United States, London, Paris, São Paulo, Hong Kong and Beijing, and it maintains cooperative relationships with leading labor and employment practices worldwide.

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