Social media and small business: A legal guide

Anyone who uses social media has heard stories of the pitfalls — you could be stalked, potential employers could snoop into your past, oversharing could lead to identity theft. But the state of Minnesota believes there's still one group that needs to be warned: small businesses.

In "A Legal Guide to the Use of Social Media in the Workplace," published by the Minnesota Department of Employment and Economic Development, Minneapolis attorney Michael Cohen argues that a company's reputation, trade secrets and legal liability hinge on understanding the rapidly changing rules of using social media.

A free copy of the guide can be read on the website of Cohen's law firm, Gray Plant Mooty, at tinyurl.com/kk58alk. Or it can be ordered in print or on CD at the department's website, tinyurl.com/y9tuj6d. Cohen explains why you should read it:

Q Why write a legal booklet about social media now?

A Every day I read about another legal case that deals with social media and privacy issues. The problem is that there is no one law that applies to social media. It's a combination of federal and state laws, plus the "terms of use" that are posted on websites and social media platforms. So I think people are looking for guidance.

Q What advice do you have for companies that want to use social media to screen job applicants?

A You have to be careful how you use it. You can't ask a job applicant about his or her family situation, place of residence, religion or sexual orientation. So if you come across that information on social media and rely on it for hiring, it's problematic. Don't have your human resources person do the social media review; have someone else do the review and only pull out the information that is acceptable.

A The National Labor Relations Board has said that company social media policies go too far when they say employees cannot post materials online that disparage the business. Employees have the right to discuss workplace conditions, and you can't fire people for doing that online.

Q But what if employees use company-branded social media, such as Twitter posts, to say things that are unacceptable?

A Companies need to understand what their employees are doing with social media for the business. A lot of companies use social media for marketing, and if that's the case the company needs to have a policy about how it's going to be used. If employees are using company social media to say disparaging things, the company may be liable for it under the principle of "vicarious liability." If, on the other hand, employees use social media outside of work, that might not be a concern.

Q Are there any precautions a company should take when it comes to social media?

A There is one very inexpensive step that businesses can take if they have a dynamic and interactive website. Under the federal Digital Millennium Copyright Act, a business can put a "notice and takedown provision" on its website.

Q If an employee uses a personal account on Twitter, LinkedIn or Facebook to promote the company, who owns that account if the employee leaves?

A Companies should make sure that social media accounts are in the name of the business, so it will be clear who owns that account. If you let one of your employees establish an individual Twitter account and acquire followers, then those followers belong to the employee if he or she leaves your company.

Q What if a company collects personal information from customers through social media, then wants to sell that information to others?

A Any company may share customer information with third parties that want to market to those customers. But the company needs to be up front with its customers and disclose in advance how it will use their information. If a company doesn't include that information in its social media "terms of use," then sharing information would be considered a deceptive trade practice.

Q How vigilant should companies be about protecting their copyrights and trademarks from misuse in social media?

Q You suggest in the booklet that companies do a self-audit of their social media use. What do you mean?

A Before a company creates a policy for the use of social media, it needs to find out how these things all fit together. How are employees permitted to use their laptops? Can employees download proprietary information and customer data? How do you use smart phones and mobile devices? Is there a policy on employees bringing their own mobile devices to work? Do employees use social media for business purposes? How do you use YouTube? In addition, you need to know what laws pertain to your business. If you're in health care, you need to know the government's rules on storing patient information. Once this audit is done, you can craft your social media policy.

Steve Alexander • 612-673-4553