For the second year in a row, Proskauer has conducted a global survey, “Social Media in the Workplace Around the World 2.0”, which addresses the use of social media in the work place. In 2012, Proskauer surveyed multinational businesses in 19 different countries (Argentina, Brazil, Canada, China, The Czech Republic, France, Germany, Hong-Kong, India, Ireland, Italy, Japan, Mexico, Singapore, South Africa, Spain, The Netherlands, the United Kingdom and the United States) in order to provide a worldwide perspective of workplace use of social media.  This survey not only shed light on notable developments in the use of social media in the workplace, but also helped identify consistent traits.

Despite legal and cultural differences, the survey revealed a surprising degree of commonality across jurisdictions as to best practices utilized by employers with respect to social media in the workplace. The 5 overarching best practices for companies are identified below.

Best Practice 1: Implement a policy dedicated to social media.

Employers should implement a policy dedicated to social media use that clearly sets out acceptable and unacceptable usage inside and outside the workplace as well as after employment comes to an end. The policy should comply with and be implemented in accordance with local requirements, including privacy laws.

The use of social media may have a detrimental impact upon a company.  If an employee discloses confidential information via social media it could be particularly difficult for employers to identify the individuals who have had access to that information. Unlike emails where the list of recipients can usually be determined, the breadth of an employee’s social media post depends on the confidentiality settings of that employee’s social media account.

Without clear policies, it can be difficult to lawfully sanction employees for misuse of social media.  In Spain, the High Court of Justice of Madrid accepted offensive statements posted on Facebook by an employee as evidence towards the appropriateness of the employer’s disciplinary action. The High Court found the dismissal of the employee to be fair because the company’s code of conduct explicitly permitted disciplinary measures for offensive or defamatory remarks made by employees against the company (High Court of Justice of Madrid May 25, 2011).

Best Practice 2: If monitoring is implemented, be respectful of local requirements.

Employers who choose to monitor their employees’ social media use at work must have clear, express and well-communicated policies about the extent and nature of this monitoring. Employers must also comply with and implement their policies in accordance with local requirements.

For instance, in France, in order to implement a monitoring system, employers have to (i) inform and consult employee representatives, (ii) inform the employees who are impacted, and (iii) notify the French Data Protection Agency.  Failure to comply with these steps may result in sanctions against the employer, suspension of the monitoring policy, and/or may make any evidence collected through the monitoring system inadmissible against the employee.

Best Practice 3: Implement a proportionate monitoring system.

Any monitoring should go no further than necessary to protect the employer’s business interests. Monitoring should be conducted only by designated employees who have been trained to understand the limits on permissible monitoring and to comply with local privacy requirements, including with respect to the safe storage, confidentiality and onward transfer of personal data.

Employers must balance the necessity to protect their corporate interests against the privacy rights of employees.

Best Practice 4: Be cautious when using information from social media to recruit or discipline employees.

Before relying on information from social media sites to make employment-related decisions, employers should proceed cautiously. Not only could the information be inaccurate, but making decisions based on such information creates the risk of unlawful discrimination, a breach of data privacy requirements and/or infringement of an employee’s rights to privacy.

In Italy, it is not permissible to refer to social media sites when recruiting and selecting candidates.  In France, although not prohibited by law, recruiters abide by a Code of Conduct which stresses that selection of applicants should be based only on their professional skills and should exclude all elements pertaining to their private lives.

When contemplating disciplinary measures based on information gleaned from social media, employers must try and balance their employees’ rights to free speech and privacy with business considerations. Certain rights weigh more heavily depending on the country and location, and may impact the particular employer’s decision.

A comparison of decisions by the Employment Tribunal in England and the French Court of Appeals highlights the country-specific nature of balancing employer and employee rights. In both cases an employee posted comments on Facebook that debased the reputation of the employee’s respective employer. In the United Kingdom, the Employment Tribunal ruled that the employee’s privacy settings, which limited access to his posts to his Facebook friends, did not give him a reasonable expectation of privacy over these posts. Since his employer had been harmed by his derogatory comments, his dismissal was found proper. However, the French Court of Appeals held that the termination of an identically situated employee was unlawful, and found that there was no evidence that the negative posts could be read by people other than the Facebook friends of the employee.  Therefore the employee’s Facebook wall was considered private and dismissal of the employee was found to be improper.

Best Practice 5: Protect your company’s confidential information.

The misuse of confidential information by employees via social media is emerging as a major issue. Employers should not only address this concern through social media policies, but should also amend provisions dealing with misuse of confidential information to explicitly cover social media. This is particularly important for companies subject to specific regulations and professional confidentiality obligations like the banking and medical sectors.

As social media becomes more prevalent in the workplace, it is increasingly important to consider its global implications, especially for multinational companies.