Your employee is being paid millions of dollars each year to perform his job. Right in the middle of today’s tasks, as he is about to receive instruction from his supervisor, your employee takes out his cell phone and posts a “tweet” on his feelings about his performance to all of his friends who have signed up to follow his twitter board. Would you have a problem with that?
At least two employers did. News surfaced last week that Eric Mangini, head coach of the NFL’s Cleveland Browns, has threatened to fine players for tweeting about events at training camp, and particularly during team meetings. This on the heels of the well-publicized action taken last year by the NBA’s Milwaukee Bucks. In that case, Bucks forward Charlie Villanueva apparently posted a message to his Twitter feed from his cell phone when he went into the locker room at halftime of a basketball game against the Boston Celtics. According to reports, the tweet that was posted from Villanueva’s “CV31” screen name read: “In da locker room, snuck to post my twitt. We’re playing the Celtics, tie ball game at da half. Coach wants more toughness. I gotta step up.”
The good news is that Villanueva apparently stepped up, scoring a team-high 19 points to help the Bucks beat the Boston Celtics that afternoon. As for the Browns, well, we’ll see. However, like many employment law issues, the concern is not for the period in which everyone is winning; rather, the key is to address a potential problem before the bad times attendant to a losing streak risk damage to the entire team.
Twitter continues to dominate the popular culture, allowing users to post microblogs from a cell phone at the pace of an instant message, and has become a popular site for celebrities in the sports and entertainment world who have a following of gaggle that hang on to the tweeter’s every move and thought. Twitter’s growth can be attributable to the ease in posting and reading the messages, as well as the fact that such posting and reading can be done anywhere one may be standing with a cell phone.
And therein lies the problem. The implications of an NFL or NBA star’s use of Twitter apply equally to your employees. Your company might not be a sports franchise, and your office may not consist of a locker room. However, your company should consider the implications of social networking sites like Twitter on your workplace and your employees.
Employer Take Away – What should every employer take away from this development? One could chalk up these stories to simply more examples of young athletes being immature. Or, they can serve to demonstrate, by extension, the realities of today’s technology and the expanding universe of modes of communication that, while increasing our ability to connect with others around the world, increase the risks right there in the four walls of your company’s office.
(1) Recognize the effect that increased social networking has on employee productivity. Even Milwaukee Bucks’ head coach recognized the productivity dilemma, when he commented at the time that “…anything that gives the impression that we’re not serious and focused at all times is not the correct way we want to go about our business.” While employers try to keep to the old adage that a “happy employee is a productive employee,” there should be limits to acceptable forms of happiness when they come at the expense of productivity because your employee is spending countless hours posting tweets when he should be performing his or her job duties.
While it is clearly more difficult to monitor an employee’s use of twitter on a personal cell phone that is not synchronized with the company’s systems, you should at the very least create a policy that prohibits excessive use of personal, social networking sites while on company time. With regard to the use of social networking sites more generally, particularly those that are used from the company’s computers, you should be mindful of the applicable laws that govern an employer’s monitoring of employee activity. Employers can, however, limit exposure under these laws, and in fact eliminate any reasonable expectation of privacy on the part of the employee, if employees are required to sign appropriately-worded documents acknowledging and consenting to the company’s monitoring policies.
(2) Be mindful of the lack of control your company has over the use of sites such as Twitter. In the good old days, one only had to worry about the informal musings of an employee on the rapid-fire system we once knew as “e-mail”. Now, there is an increased potential for workplace harassment that comes with the even great informality of Twitter. There is a real concern over the fact that twitter posts from a personal cell phone may not be part of the company’s systems, and thus the company may not have the same ability to control or capture and save messages in the same way it can with e-mail, or even with instant messages that are delivered through the company’s computer system. Employers must nevertheless be sure that their harassment policies address the potential issues that arise in the context of inappropriate harassment and discrimination through the use of social networking sites, and be equally vigilant when responding to a complaint arising from communications made on those sites.
(3) Prevent employees from intentionally or inadvertently disclosing confidential or proprietary information due to the informal nature of communications on sites such as Twitter. Again, it is critical for your company to make sure it has policies in place regarding the use and disclosure of company information, and that those policies specifically address the concerns attendant to these new social networking sites.
(4) Consider restrictions. The trend toward making it easier for employees to engage in communications quicker and from anywhere in the world, increases the possibility that such employees claim to be “working” 24/7 while engaging in those communications. For example, even if your company does not authorize a non-exempt employee to work overtime, an employee must still be paid for hours worked (although a company certainly can discipline an employee for performing unauthorized overtime). Without the proper policies in place, and without the appropriate measures taken to ensure that the company can control and stay on top of the number of hours worked by all non-exempt employees, the potential for exposure exists under federal and state wage payment laws.