Ever since the first merchant set up a tent at the Grand Bazaar in Istanbul, the world’s first mall, or Sears met Roebuck, employees have complained about employers.

But there’s a new twist on the old dynamic thanks to that digital water cooler, a.k.a.  social media. It’s where the “look-at-me” or “listen-to-me” generation spews out opinions and every excruciating detail of their daily lives in 144-character rants or selfies.

Companies are wondering about their options when it comes to protecting their reputations from sometimes-libelous comments or disciplining employees who violate social media policy.

Digital Overseers

The law seems to be a moving target with new statutes and interpretations coming out almost weekly. The question is whether companies should become digital overseers by monitoring employees’ social media activities. Do you even have the right to do it? And, if you do, how deeply can you go?

It’s a slippery legal and ethical slope involving worker rights, privacy and discriminatory practices. Here’s the conundrum: Is a negative Facebook posting or Tweet really a First Amendment issue, a civil right or just an outburst by an Angry Bird who probably should have thought twice before pecking the keyboard at midnight?

It’s become a significant issue. A survey by the global law firm of Proskauer Rose—Social Media in the Workplace Around the World—found that about 80% of companies now have formal social media policies, up from just 35% several years ago. Meanwhile, social media abuses have increased. This includes:

• Misuse of confidential information, 80%
• Misrepresenting the views of the business, 71%
• Inappropriate non-business use, 67%
• Making disparaging remarks about the business or other employees, 64%

Parental Controls?

One solution is to block access to social media at the office or on company-owned phones or laptops. But that doesn’t do anything about people discussing sensitive company information or talking trash on their own time. And don’t tell me that at one time or another you haven’t said something online that you later regretted. The problem as we, and certain politicians know, is that the Internet never forgets—especially the dumb stuff.

I’m not even sure if this should be the single criteria for firing someone, unless you’re seeing an inordinate number of postings to Al-Qaeda or White Supremacist websites. And at what point does refusing to hire someone because of private postings unrelated to business become discrimination or an unfair labor practice?

The National Labor Relations Board would be happy to enlighten you since it has already applied the National Labor Relations Act to corporate social media policies. Unfortunately the NLRA was enacted in 1935, when texting was done with the recently invented ballpoint pen.

Under the law, employees have a right to say they hate the company and their boss for crappy pay and lousy shifts. This is called “concerted activity” and constitutes a discussion of terms of employment for the purposes of collective bargaining without running the risk of being fired. And it applies to union and non-union employees.

On the other hand, if employees post online that their boss is a jerk or use some other colorful epithet for him or a co-worker, they may have violated harassment or anti-discrimination policies.

Crafting Best Practices

Crafting a social media policy that will pass muster is no easy task. However, there are some best practices.

• Communicate guidelines when an employee joins the company.
• Have employees consent to social media policies in writing.
• Clarify that disclosing company secrets in personal or business social media accounts is a violation.
• Make sure employees know that if they do something wrong they can confess without consequence.
• Don’t ask employees or prospective employees for social media passwords except in the case of an in-house investigation.
• Assign a limited number of designated employees to do any monitoring.
• Keep detailed documentation of misuse on social media sites.
• Safely store all personal data collected from monitoring.

There’s no doubt every company should have a social media policy. But before you do anything, think about it, consult in-house counsel or outside experts, then think about it some more.

By the time you do, the law might change again.