Steps to Mitigate Risk in Social Media

Social media has become a powerful, and often necessary, tool to connect the hospitality industry with customers. The business decision to create and develop a social media presence is not the only hurdle, however—it is important to be mindful of the legal risks that accompany any online presence. In this article, we highlight some important considerations that clients face in several categories:  employees, ownership of information, and collection of data, advertising, and litigation.

Employees

  • Employers commonly use social media to vet candidates for positions. While the glimpse into the social life of the potential employee can provide valuable insight, it also can provide immediate answers to those questions employers are prohibited from asking—i.e. age, family status, etc. Therefore, be sure to establish a bright-line rule for yourself and those in charge of hiring: If you are prohibited from asking about the information you gleaned from social media, then absolutely do not base your hiring decision on that information. Instead, implement a standard and thorough hiring process to ensure that you can demonstrate that employment decisions were not based upon illegal criteria.
  • For current employees, a standard and clearly-articulated social media policy is necessary to mitigate potential public-relations disasters and other risks. Your policy should encourage civility, prohibit any harassment or discrimination, protect private or confidential information, and prevent any unauthorized comment on behalf of the company. Further, provide clear guidance to employees regarding maintaining confidentiality of certain information. That being said, it is imperative that your policy also protect the employee’s rights, including the right to criticize your company, complain about working decisions, or discussing wages, as such activity can be considered protected concerted activity under labor relations laws.

Ownership of Information and Collection of Data

  • To avoid potential interruption or other hassle, ensure that the company owns the social media account, and not just an employee in charge. Also, make sure that more than one employee has the login credentials for all accounts, and include the return of login credentials as a part of any exit interview.
  • Consistently use your company trademarks and trade names in all social media interactions, as this use is vital to maintain the status of any marks. Also, regularly research your trademarks and protect against impersonation or misappropriation by promptly issuing cease-and-desist demands to ensure continued protection and value of your trademarks.
  • Various laws govern the collection of personal data, and these privacy concerns apply equally to social networking sites. If you plan to collect data or send commercial messages, be sure to post adequate privacy notices and consult with counsel to comply with all data-collection laws and regulations.

Advertising and Promotions

  • Many federal and state laws also govern advertising, mandating truth in all advertisements. Always be sure that your comments on social media are not misleading, and that employees disclose their relationship when providing a favorable review. Finally, be aware that many laws govern online incentives, including lotteries, prizes, rewards, and sweepstakes. Always consult legal counsel before engaging in any such promotion.
  • Be sure to interact with competitors appropriately. Develop a company policy to avoid making disparaging comments and to always respect the intellectual property of competitors (and anyone else).

Litigation

  • Always remember that social media is permanent, and content often may be retrieved through a host of means. Social media information can often be used as evidence, and companies often have to deal with requests for such information in discovery. Ensure that you have good custodial practices and include social media in your document-retention practices.
  • When put on notice of a potential legal claim, you should immediately issue a “litigation hold order,” instructing pertinent employees to preserve evidence (including relevant personal devices, non-company emails, or social media accounts).

If you have any questions concerning this or other legal issues, please contact Erin R. Kawa (717-909-1624; ekawa@shumakerwilliams.com) at Shumaker Williams, P.C., PRLA’s General Counsel.

 

Erin R. Kawa, Esquire
SHUMAKER WILLIAMS, P.C.
General Counsel,
Pennsylvania Restaurant & Lodging Association