As the holidays approach, I am reminded of an employment law attorney I used to know who wrote a column about this time of year about holiday parties. He would warn Human Resources (“HR”) professionals to beware of sexual harassment issues as the punch flows and inhibitions dissipate at the annual office get-together. How things have changed. In this era of Facebook and I-phones, every day is a holiday party in terms of potential liability. It used to be the only photographic evidence of employee carousal was a black and white photocopy of someone’s derriere. Now, smart phones capture everything in full color pixilation and the evidence is posted instantly. We may never know what Herman Cain and his associates were up to in the 1990s, but if it had happened now, you can bet there would be a text, tweet, or digital photo to add fuel to the Yule log fire.
As 2011 draws to a close, most employers have realized they cannot ignore social media. Social media exponentially increases a company’s opportunity for marketing. But HR folks also know that social media exponentially increases the opportunities for employees to do silly things and get in trouble. More than one fast food franchise has had to respond to digital photos posted on line of teen-aged employees bathing in a restaurant sink. Even folks who ought to know better, including an NFL quarterback and a United States Congressman, allegedly sent digital photos of their sugarplums to women who either did not want them, or did not mind sharing them on the Internet.
Based on my conversations with members of corporate HR departments, in the 2012 New Year they will be facing Social Media 2.0 – Rise of the Smart Phones. Anyone who does not already have a smart phone will probably get one for Hanukkah or Christmas. All employers should already have a social media policy addressing expectations of privacy, anti-harassment, overtime, trade secret protection, Federal Trade Commission (FTC) restrictions, and exceptions for concerted activity and protected speech under the National Labor Relations Act. Next year, employers will need to consider whether certain categories of employees should be required to keep smart phones locked away during business hours and will also need to respond to the growing demands by employees that they be allowed to conduct confidential company business on their personal I-phone.
Many employment law attorneys and HR managers may be asking Santa for a respite from the technology onslaught, and may need a drink at the holiday party as much as the next employee.