UNINTENDED CONSEQUENCES OF THE USE OF SOCIAL NETWORKING SITES
On May 1, I published an entry addressing social networking in the workplace. Subsequent to that time, I had the opportunity to give another presentation on social networking. Some interesting questions were asked by attendees that raised additional issues that need to be considered by employers when their employees are using social networking sites for business purposes. One company permits its workers to use social networking sites to communicate for business purposes after regular business hours. This raises questions concerning the FLSA and overtime: if non-exempt employees are conducting company business from their personal computers/PDAs, after regular business hours, are they entitled to compensation, including overtime if they work more than 40 hours a week? Are the employees "on call", thus entitling them to compensation?
Another issue is the ownership of the information exchanged between an employer and an employee on personal computers/PDAs: should someone leave their employment, can they use information on their personal computers/PDAs when they start working for someone else who is a competitor? Is the information confidential if no steps are taken to make it confidential?
One question that was asked had ADA implications: a supervisor learned from a social networking site that one of the employees was suffering from depression. Did the supervisor have an obligation to report this to HR? If so, did HR have an obligation to go through the interactive process with the employee to determine if the depression was impacting his ability to work? If so, were there any reasonable accommodations that could be made?
Practice Pointer. Technology is moving too fast for the courts to keep pace. Answers to these questions, and many others, will take years to wind their way through the courts. In the meantime, it is recommended that employers adopt appropriate policies and procedures concerning the use of social networking sites for company business, and confidentiality and ownership of information that may be on personal computers/PDAs.
