Employer Policies and Practices A well-crafted technology and social media policy that balances company needs and concerns against employees’ legal rights is an important tool in managing competing legal risks. Some of the business and legal risks that an employer should address in a technology and social media policy include: • Covered technology and devices : Employers should consider whether the policy will extend only to employer-paid or provided devices or whether the employer may lawfully and should extend the policy to personally-owned devices used for work purposes. The law is still evolving in this area, and it is not clear whether employers have the legal right in all jurisdictions to search an employee’s personal device or personal email account on a company or personally-owned device. However, having a clearly-worded policy can improve an employer’s legal position in arguing that it has the right to access any technology devices used by an employee for work purposes. • Privacy considerations : Due to the privacy issues discussed above, a policy should include an express warning that the employer retains the right to monitor and review the use of and content on any technology and devices covered by the policy. As discussed above, however, there have been court decisions finding employers liable for improperly accessing or using online content, particularly where the content was on a website with restricted privacy settings, such as Facebook.com. As such, employers should take care to ensure they lawfully access online content, and they should consult with counsel as appropriate to ensure compliance.
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