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Use of developing media in the workplace may carry hidden risks

To most people and businesses, the world of social media is a land of opportunity.

To the lawyers, it's a minefield.

As consumers and businesses rush headlong onto Facebook, Twitter, LinkedIn and others, attorneys are cautioning clients that the social media realm is filled with plenty of risks for both.

There are risks of embarrassment, risks of loss of privacy, risks of damage to career, educational or business opportunities, risks of harm to reputation, and especially risks of unexpected liability to lawsuits or other legal action. And managing or avoiding them is far harder than it may seem.

That's because, attorneys say, there's an inevitable clash when you mix anything social, personal and casual with the controlled environment of work.

"Social media is filled with risk. You're dealing with issues that are not related and limited just to the workplace," said Randolph Oppenheimer, chairman of the labor and employment law practice at Damon Morey.

So by its very nature, social media creates the conditions for both employees and employers to inadvertently get in trouble.

"People don't realize that what they're posting out there is being used in more ways than they intend," said James R. Grasso, labor and employment law partner at Phillips Lytle. "I know lots of employers who have turned down employees because of what they've found."

And the potential problems will only grow because it's the younger generation of workers -- and those who are still in school -- who are and will be most comfortable with social media.

"The younger generation seems more at ease with the social media tools and more willing to communicate with the outside world about their daily events," said Gary Schober, president of Hodgson Russ.

"If you're careful, that's fine. But sometimes, for whatever reason, people are not careful, and they post things that later turn out to be regrettable."

> Few rulings

Recognizing this, lawyers are already studying a range of issues across all fields, learning any laws or regulations that might apply to social media, and reviewing the few court or administrative rulings so far.

They're hoping to anticipate pitfalls in advance, knowing they're inevitable. And they're trying to counsel their clients to adopt formal social media and Internet policies for employees -- particularly for any approved uses -- and to avoid certain actions by management.

Those policies cover topics such as the use of business equipment or time to access social media, the uploading of contact or address book information and regulating of content. Policies should also prohibit employees from "pretexting," or pretending they're someone else in order to obtain or provide information online.

Even so, they acknowledge they've only begun to scratch the surface of what could happen. In short, the potential minefield appears endless.

"It's the frontier. Every day there's a new and novel twist," said Charles C. Swanekamp, litigation partner at Jaeckle Fleischmann & Mugel.

"There are a lot more ways for clients to get in trouble. There are a lot more avenues for clients to market, and as a consequence, there's fertile grounds now for litigation and administrative sanctions against clients that 10 years ago never existed.

"If you're a company that decides to embrace social media, you need to make sure that all cannons on the deck are tightly lashed in and you need to have a policy on social media."

One of the biggest risks, lawyers say, centers around protecting reputation or brand. At a minimum, online postings could cause personal or corporate embarrassment, depending on the content and who sees it. So attorneys say people have to be careful about posts.

"It impacts your whole reputation," said Erin E. Rouse, marketing coordinator for HoganWillig in Amherst. "The things you post up there and things you say really paints a picture of your reputation. You want to make sure it comes across the way you want."

Inappropriate or indiscrete material also could harm someone's prospects for getting a new job or getting into school.

"Social media opens up a window that heretofore had not been opened for the outside world, including employers," Schober said. "All of a sudden you have not only schools, but you have employers who routinely will go to some of the social media tools such as Facebook when they go to hire somebody and take a look."

> Troubling areas

But the situation can be more serious if the material diminishes a brand, infringes on intellectual property by misusing brand logos and information, or exposes an employer to ridicule.

For example, an employee might identify their employer or a connection to a company on their social media site, but also upload personal photos and information, or discuss private activities, that the firm doesn't want to be linked with.

Even something as simple as poor spelling or grammar can be an issue, Oppenheimer said.

"You have a brand reputation and the business wants to protect that from dilution, from embarrassment, from wrongful use," Oppenheimer said. "There are a whole host of issues just on that branding concern."

In more extreme cases, a Facebook, Twitter or other posting could result in libel or defamation, copyright or trademark infringement, plagiarism, invasion of privacy or other legal liability. And in most cases, it would be unintentional.

"The person who posted the message might have thought he or she was talking to a smaller group of people, and never intended the wide-ranging implication that might come from posting it," Schober said.

Innocent comments in a quick tweet or text message also could release confidential customer information. Healthcare workers, for example, are bound by particularly tight privacy rules under HIPAA, so tweeting, posting or blogging about a "terribly adverse result in a hospital" or complaining about understaffing, the competence of a doctor or nurse, or mistakes in medication "would be a terrific concern," Oppenheimer said.

"It's very easy to type on a BlackBerry a short burst message, in an impulsive way," he said. "It might be something as simple as that."

Or trade secrets could get accidentally exposed during an exchange of ideas in an online discussion group. "It doesn't take a lot for somebody to let something slip," Grasso said.

The law of unintended consequences may also kick in, as loyal employees could unwittingly create liability while trying to help their company promote its products or services online.

The Federal Trade Commission issued rules that an employer can be held liable for "false and deceptive" statements that employees make about its products on social media. If they are endorsing a product on their personal sites, they also must reveal their connection to the company or product. And if they're disparaging competitors' products, they could face libel or defamation.

"There will be potential liability for people that we can't even think of today," Schober said. "They'll just require the actions of creative lawyers down the road that will reveal where the social media will take us in terms of the social issues."

Labor and employment issues also arise with social media, including when companies do try to fashion a social media policy to prevent problems. Often, companies try to restrict or even prohibit employees from disparaging the company, its products or services, its brand, its executives or its managers.

In one notable case, Swanekamp said, an employee of American Medical Response in Connecticut started "trashing" her supervisor on Facebook, and then her co-workers "started jumping in." So the ambulance company fired her for disparaging her supervisor.

But the National Labor Relations Board ruled that, since other employees joined the discussion, it was considered "concerted activity for mutual aid" that is protected under federal labor laws, even though the company is not unionized. She was reinstated, with back pay.

"That's got everybody's attention," Grasso said. "Employers have to be aware that there are limits to the extent that they can control employees' comments on their personal social networking sites."

> Hiring decisions

Social media can also come into play in hiring decisions. Many employers now search social networks for job candidates, and also use social media and Internet search engines to investigate job applicants for factors related to the job and personal conduct. That's allowed, as long as they don't misrepresent themselves to gain access to password-protected areas.

But that also risks coming into possession of protected personal information that, by law, they shouldn't have.

In particular, the Genetic Information Nondiscrimination Act not only bars employers from obtaining and using genetic information about employees -- such as a family history of certain diseases -- but specifically prohibits them from going to a social media site to find out. There is a "safe harbor" for employers who find out by accident, but the burden is on them to prove the information didn't affect the decision.

"HR folks should not be accessing any social media websites in connection with any employment decisions, nor should supervisors be doing so," Oppenheimer said. "But we all have to deal with the reality that people are going to do it. It's problematic, and that's why employers need policies that deal with it."

> Litigation factor

Finally, social media is becoming a factor in litigation. Attorneys use social media to investigate not only the plaintiffs or defendants, but also potential jurors and witnesses, and to prepare for unfriendly depositions, as long as the information is publicly available. "You can learn a lot more about an individual than you ever could before," Swanekamp said.

If a person is alleging harassment at work, for example, employers want to see what photos and comments they seem comfortable with on their Facebook or Twitter sites. But they can't misrepresent themselves to get the information. "Nothing's private anymore," Grasso said.

It's even replacing the need for attorneys to hire private investigators when someone is claiming an injury or disability.

"Everything is on people's Facebook pages, so if someone is supposed to be injured, they better not have a Facebook page where they're waterskiing or fixing the garage door," said Diane R. Tiveron, managing partner at HoganWillig.

e-mail: jepstein@buffnews.com