Social Media Advisor – The Means of Accessing Social Media are as Significant as what Employees are Accessing

 

Access.   Much of what we write about when it comes to social media involves the nature of access that employees have to various forms of social media, including employee use of social networking sites and blogs.   Taking one step back, it is worth considering the means by which employees are given access to social media: employer-provided Blackberries and other PDAs.   Before just randomly giving out these devices to all employees, employers should heed a very important warning.

First, employers should think about the impact that easily accessible social media has on productivity.   According to the Department of Labor, workplace productivity for this past quarter (April to June 2010) saw its largest drop in almost four years.   Many factors account for this eye-opening data, but the amount of time that employees continue to spend accessing and actively engaging on social media sites, particularly during working hours, cannot be ignored.   It seems as if companies are constantly searching for that perfect balance between increased efforts to monitor such access in order to improve productivity, and a desire to avoid the George Orwellian-like atmosphere where “big brother” serves to eradicate employee morale.

Second, there is a potentially greater concern than simply trying to improve productivity while also maintaining high morale: the need to control employees’ work time. Technology has torn down the office walls, making anywhere and everywhere in the world a virtual cubicle.   Employees not only have greater access to company documents and e-mail from home computers, but Blackberries and similar devices allow employees to remain connected with the office, and with clients or customers, day and night.   These devices provide the means for employees to access company information, as well as social media through the Internet.

Indeed, coupled with the increasing number of employees allowed to telecommute, it is practically impossible for an employer to control, let alone know about, all hours in which employees are performing work for the company, particularly when much of that work is often done on a Blackberry.   Moreover, the fact that employees in many industries often receive their compensation in the form of commissions provides its own incentive for employees to work as many hours as possible without the encumbrance of the typical workday or office walls.

Employer Take Away:   What should every employer take away from this development? 

(1)        Effective policies should spell out issues such as when an employer can monitor employee access to the Internet, and what an employer can monitor (including the ability to monitor company-issued laptops and Blackberries, and private accounts on those devices).   In a similar vein, the very strict requirements contained in federal and state wage and hour laws compel a well-defined overtime policy that is distributed and communicated to all employees.   Even if an employee works overtime that is not authorized, an employer in most cases may still be required to pay overtime compensation for that work, although the employer can certainly discipline and even terminate an employee for performing unauthorized overtime.  

(2)        Employers should say what they mean and mean what they say.   If the company maintains a policy that employees should not work after hours, then it should not create a culture where employees feel as if they are expected to “check in” at all hours through home computers or Blackberries.

(3)        Employers should ensure that the appropriate employee classifications are made for wage and hour purposes, and that the appropriate records are maintained to support the proper wage classifications for employees.   To avoid being concerned with the amount of time spent on a Blackberry, consider giving Blackberries only to exempt employees. Otherwise, care must be taken to ensure that work being done out of the office on a Blackberry or similar device is properly accounted for, and that one can distinguish between the performance of “work” and access to forms of social media for personal use.

In all cases, employers should consider instituting a documentation procedure for non-exempt employees (and even exempt employees) to better track (and better defend itself against) the number of hours an employee later claims he or she worked. In light of today’s changing workforce from the standpoint of increased use of technology and more time spent outside the traditional office, a company should consider requiring a written employee certification, for example, at the end of each pay period attesting to: (i) the number of hours worked during that period, and (ii) the fact that the employee did not work more than 40 hours during that period.   Such a certification will not eliminate the potential for an employee to claim in a subsequent lawsuit that hours were worked in addition to those identified on the certification. However, a contemporaneous certification completed regularly by the employee may bolster your company’s defense of that claim.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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