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Make your Social Media Policy Stick

When it comes to monitoring employee social media use and, in turn, compliance with your policies, companies are generally governed by the Electronic Communications Privacy Act (ECPA), passed in 1986. The courts struggle with interpreting this outdated law because of the explosion in the types of electronic communication that have launched since the passage of the act. Questions have arisen about what companies can and cannot do to monitor employee use of electronic communication.

For example, the very convoluted terms within the law make it hard for employers to understand whether they are the provider of the platform at issue. Is the company at risk because it owns the servers? Or is it AOL or Microsoft that supports the communication? Failing to address the nuances of the ECPA can be costly as the law generally prohibits companies from intercepting electronic communications, whether in the form of e-mails, electronic posts or other means for communicating in social media.

As an employer, the way to deal with these highly technical court actions is to embrace the silver bullet that allows a company to monitor employee use?Çöproper consent.

Making sure your company is covered is a relatively simple fix, because no matter the form of monitoring, an employer can monitor electronic communications if the employee has provided his or her consent. As the devil is in the details, this is a step where companies often seek counsel to ensure that what they are actually monitoring is appropriately covered by their employees?ÇÖ consents.

Companies must realize the old standard handbook they have had for years may be out of date regarding social media. It is important to make sure employee consent is broad enough to capture the things that could take place on company-provided equipment so employees can understand what can be captured.

The policy should be fluid and grow with the technology. For example, the policy could state: ?Ç£The company can monitor e-mail, social media or any electronic communication, including forms of communication not yet developed.?Ç¥ This way a company is covered for new technological advancements the world does not know about today, such as developments in the Internet cloud.

This is part of an excerpt of an article that I wrote for PR News “PR Insiders” Guest Column: How to Make Your Social Media Policy Stick.

Matthew Deffebach is a partner in the Labor and Employment Practice Group of Haynes and Boone. He is certified by the Texas Board of Legal Specialization as a labor and employment law specialist. In 2010, Law360 named him a rising star and one of 10 employment lawyers under 40 to watch. He was selected for inclusion in Texas Super Lawyers - Rising Stars Edition (2005-2010). Matthew was recognized as a Texas Super Lawyer by Texas Monthly in Employment and Labor (2010-2011).

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February 2012