“If you don’t have a Facebook page already, create one,” advises marketing expert Ross Fishman in his step-by-step guide for those who need to generate business for their companies. Lots of people have followed this advice. Facebook Press Room reports that there are over 400 million users posting more than 60 million status updates every day. Fishman also advises hopeful business generators to “keep it casual but professional.” Lots of people have not followed this advice: for example, the Florida Sheriff’s deputy who appeared in uniform on his MySpace page, wrote about putting people in jail, and posted a list of his favorite things, which included female breasts, swimming naked, and drinking heavily and often; and, the 13 Virgin Atlantic cabin crew members who posted disparaging remarks about the airline and its customers on Facebook; and, the Google new-hire who divulged confidential information about the company’s financial situation and planned product offerings in his blog. And, the list goes on.

The bad news for employers is that they may face legal liability when employees engage in this kind of activity, regardless of whether it happens at work or at home. What kind of legal problems arise when employees misuse social media? Employees who post derogatory comments about co-workers’ race, sexual orientation, religion, or any other protected characteristic put their employer at risk of a discrimination claim. Employees who post rumors or offensive false statements about co-workers put their employer at risk of a defamation claim. Employees who post sexually-charged or offensive information put their employer at risk of a hostile work environment claim. And, the list goes on.

 The good news for employers is that they may take steps to reduce the risk of liability. Employers may create a social media policy that, among other things,:

• States that the misuse of social media may result in disciplinary action, up to and including termination;
• Prohibits employees from posting during business hours, unless for business reasons;
• Prohibits employees from disclosing proprietary and confidential information;
• Prohibits employees from posting false information about the company, employees, and customers; and,
• Prohibits employees from making representations on behalf of their employer.

Although employers are allowed to implement a social media policy, there are some legal constraints they should consider before taking adverse action against employees, such as:
• How the employer accessed the information;
• Whether the employee was engaged in legal off-duty activity or protected concerted activity (such as trying to unionize);
• Whether the employee could be protected under a whistleblower statute; and,
• Whether the posting related to political activities or affiliations.
 
  Employees need to know that misusing social media may have dire consequences for them as well as for their employer. The Florida Sheriff’s deputy mentioned above was fired for his posting, as were the 13 Virgin Atlantic crew members, and the Google employee. Employees also need to know that misuse of social media also includes accessing it too much while at work. A survey conducted by the American Management Association and The ePolicy Institute revealed that 34 percent of the managers surveyed said they terminated employees for excessive personal use of the Internet while at work. According to Facebook Press Room, the average user spends more than 55 minutes on the site each day. If that 55 minutes is while at work, an employee could be in trouble.

Social media is not a bad thing. However, using it to damage employers, co-workers, and clients (whether intentionally or not) is a bad thing. Employers and employees alike benefit from written guidelines that communicate clear expectations about the appropriate and inappropriate use of social media.