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When a business starts hiring employees, business owners often become concerned about their employees’ online activity. The concerns may include

  • illegal online conduct (such as copyright infringement by illegally downloading music and movies, which can result in legal consequences),
  • online pornography or sexually inappropriate materials,
  • defamatory (libel and slander) comments posted on websites or in forums,
  • unprofessional photos or dialog posted on social media like Facebook or Twitter, or
  • other unprofessional online conduct that could harm the image of the business.

For example, the owner of a business with over 50 employees contacted me recently about a concern over the employees “friending” clients on Facebook, posting unprofessional pictures or information on Facebook, and engaging in other social media activity that would cast the business in an unprofessional light.

This business owner wondered whether she could restrict her employees’ use of social media when they are not working (such as at home at night). This is a controversial issue.

The general rule for Minnesota employers is this:

In Minnesota, you can fire an employee for any reason except a few improper reasons (usually discrimination reasons related to race, sex, family status, age, sexual orientation, religion, etc.). However, you cannot unreasonably restrict your employees’ conduct when your employees are away from the job.

The key to discouraging employees from engaging in unprofessional conduct online is having a strong, effective social media policy in your company. For example, consider the social media policies of these 100 companies.

Please note that some aspects of social media policies are not enforceable in every state. Also, some provisions may be included to discourage certain activity that the law does not permit employers to restrict.  That is, even though some provisions are not enforceable, they are included because employees will presume they are enforceable, so those provisions may help discourage improper behavior.

It would be nice if there were a one-size-fits-all social media policy that every company could adopt. Unfortunately, that isn’t possible because of the

  1. unique activities of each company,
  2. various needs of each type of employee, and
  3. varying laws in each state.

Still, a social media policy for your company doesn’t need to be expensive. (For example, our firm can draft one for $500 to $1,000, depending on the circumstances.) What is most important is that you have a social media and internet use policy so that you can avoid the legal risks and consequences from employees acting improperly or illegally online.

9/28/2011 Update: Here is a recently published article on this problem faced by many employers: Facebook Policies Tricky for Employers, Employees.

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