Last week we posted about "reducing employer risk concerning employee social media use - anonymous communications."  Today we are discussing reducing employer risks in the context of disparagement by employees. 

Although blogging and social networking may benefit companies in many ways, employers have begun taking note of important legal risks of employee use of Web 2.0. We have addressed some of those risks on Littler's Workplace Privacy Counsel blog, including here, here, here, here, here, and here. Recently, the ABA podcast a segment highlighting some of these risks entitled, “Tweet, Tweet, You're Fired“ that raised additional issues employers should consider as they evaluate their own policies and practices regarding social media. 

In a previous post on the Workplace Privacy Council blog, we discussed the dangers of employee endorsements on social media websites. On the flipside, the ABA podcast raises the issue of whether an employer should develop a policy to regulate the disparagement of others by its employees.

Employees may cause harm to their employers on social media websites by disparaging them, their colleagues, or the products they produce and the services they render. The employer may take legal action against such employees, but that path sometimes is fraught with dangers of its own.

Moreover, the other sort of mischief caused by disparaging comments by employees on social media occurs when that disparagement is directed outward especially to competitors. Federal statutes and regulations and state statutes prohibit deceptive trade practices. Overzealous employees may run afoul of these laws by disparaging competitors inappropriately. 

To avoid disparagement directed inward as well as outward, employers should develop a policy regarding disparagement on social media that:

• Indicates that an employee’s social networking is subject to all of the policies of the company, including those prohibiting harassment, confidentiality, and appropriate use of electronic resources.
• Ensures that any comments the employee makes are those of the employee alone and do not reflect the views of the employer.
• Prohibits disparaging or discrediting references to company products and services.
• Addresses the use of and prohibits improper use of the employer’s name, trademarks, and other proprietary information in blogs and other social media.
• Requires that criticisms of a competitor, its employees or its products or services, if permitted at all, be limited to truthful, verifiable statements, non-misleading statements and should be subject to prior approval by management.