The Minnesota Department of Employment and Economic Development recently published a free “Legal Guide to Social Media in the Workplace,” which serves as a useful tool for employers when evaluating their social media usage policies. The manual—which is available for free download here—addresses the myriad legal risks that accompany social media usage by businesses and their employees. As a litigation boutique, we found these topics especially poignant:
Evidence Preservation. Tweets, blog posts, YouTube videos, and text messages may all be considered evidence in a lawsuit. Record retention policies must be broad enough to cover all types of social media accounts the business uses, and not just company email. Failure to preserve such evidence could lead to spoliation sanctions in litigation.
Labor Law. Employers may expose their hiring decisions to legal challenges when they use social media to screen job applicants. Additionally, employers may expose themselves to FLSA liability if they encourage or permit hourly employees to work remotely. After-hours emails or other social media usage may be used to support an unpaid overtime claim.
Vicarious Liability. Businesses can be held liable for actions their employees take within the course and scope of their employment. Employee emails, blog posts, and tweets could expose an employer to potential claims for defamation, infringement, invasion of privacy, and so on.
These issues underscore the need for businesses to develop and enforce a comprehensive social media policy, which is (1) tailored to the actual practices of the business and its employees; and (2) sensitive to applicable federal, state and local laws and regulations.
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