Human Resources

February 11, 2012

Are Employees Blogging You Into Bankruptcy?

Are Your Employees Blogging You Into Bankruptcy?
An employer’s biggest productivity concern used to be whether employees were taking personal calls or playing solitaire on the computer.
Social media has added a new demand for employer protection from cyber activities.


Today, technology is growing by the nanosecond, far too quickly for employers to keep up. Long-standing privacy considerations are at near-constant tension with the advent of the Internet, social media, e-mail and other electronic communications tools.

To be competitive in today’s market, business owners must make effective use of social media. Current marketing trends almost require that businesses have an on-line presence, and volumes of encyclopedias have long since been replaced by Google searches. To protect their businesses, however, employers should set boundaries on their employees’ internet and social media activities, both inside and outside the workplace. Consider these protective methods to avoid damage to the company from employees’ electronic communications and social media activity:


Documentation. Implement effective and thorough policies on social media activity, confidentiality and electronic communications. Employees should be reminded in writing that all electronic communications created on company equipment or accounts will be monitored by the company, and that they have no privacy rights in these communications.  Have your policies reviewed by legal counsel – technology moves faster than the law ever will, and today’s courts are deeply challenged by litigants’ rapidly-developing arguments over newly-discovered electronic media.


Ownership. When an employer provides cell phones and laptops to employees and pays for the cell phone account and the wireless access, the employer owns and controls the cell phone number, e-mail inbox, internet accounts, and all social media or other electronic communications created by the employee while on working time, using company equipment, or otherwise controlled by the employer.

Included in “ownership” is the company’s brand, logo, customer information or other trade secret, confidential or proprietary property. While the employer may not prevent the employee from engaging in social media activities on his own time and while using his own equipment, the employer does have the right to pursue a claim against an employee who posts defamatory content on the internet.

Similarly, although an employer cannot safely terminate an employee who vents about a fellow employee in his social media posting, the employer can certainly terminate the employee who harasses a fellow employee in violation of the company’s anti-harassment policy, even when that harassment occurs during the employee’s off-duty conduct.


Monitoring. Employers can actively monitor their employees’ communications and internet activity, both internally and externally, as long as employees have been warned in writing that employers can and will do so in their discretion. Employers should also conduct their own internet searches using tools such as “Google Alerts” to track the information that has been published about the business and its personnel. 

Ultimately, business owners should keep in mind that you are (or should be) the owner of your company, your technological equipment, your electronic communications accounts, your employees’ working time and your reputation. With the advent of technology, we are drowning in information, but starved for knowledge. Make sure that the information publicly available about your company is not the information your employees choose to post, but instead is the knowledge you want to publish. •

Why Have A Systems Use Policy?

An insurance agency allowed its new agent, Cindy, to use her personal laptop computer and iPhone to conduct her business activities. The agency was thrilled to avoid the cost of a new computer, and was more than happy to reimburse Cindy for her business calls made on her personal cell phone.

Unfortunately, Cindy didn’t perform to the level the agency expected of her. Her sales results were substandard, and she seemed to be wasting an inordinate amount of time on personal matters in the workplace. Her supervisor reviewed her Internet activity while at work and discovered that she was spending several hours each day surfing the Internet on shopping sites, Facebook, and other personal search activities. Much to the agency’s surprise, they also discovered that Cindy was downloading customer lists and files and sending them to her home e-mail address. She was planning to move her business to a competitor agency.

The agency terminated Cindy and sued her for unfair competition activities. The court refused the agency’s demand to recover its customer list, because the agency had previously permitted Cindy to download it to her personal cell phone without restriction. The court also refused to consider the agency’s computer search results in its action against Cindy, because the agency permitted her to use her own laptop for business and personal use. The agency had failed to implement a “systems use” policy notifying Cindy in advance that her computer could be monitored at any time without prior notice. •

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About the Author

Karen Gabler
Karen Gabler
Karen L. Gabler, Esq. is an employment law partner and co-founder of LightGabler LLP. Having represented employers in all aspects of employment law advice and litigation for almost two decades, Karen focuses on proactive strategies her clients can implement to promote workplace productivity and defend against employee disputes. Karen’s seminars, articles, training programs and legal updates can be found at Read more about Karen Gabler...


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