UPDATE:

Employers …  may face liability under federal, state and local law for using any information learned from social media about an applicant’s protected class status — race, age, disability, religion, sexual orientation, etc. — in a hiring decision.  It may be hard for the employer to prove in later litigation that it only viewed, but didn’t actually use, the information obtained in a social medium when making its hiring decision.  For more visit The National Law Journal

12/24/08 An article by Tresa Baldas of The National Law Journal, Beware: Your ‘tweet’ on Twitter Could be Trouble, suggests that twittering could get you and your employer into trouble.

Here are the NLJ fine points, and my thoughts. Feel free to chime in…

Potential Problem 1 – Users posting tweets from corporate networks could expose company secrets. These conversations, lawyers note, are legally binding and subject to the legal rules of electronic discovery, which means tweets could be subpoenaed in a lawsuit.

Suggestion 1 – Don’t Twitter from your corporate network OR as a matter of company policy, establish a set of guidelines under which employees will be permitted to Twitter from the corporate network.

Potential Problem 2 – Twitter also raises invasion of privacy and defamation issues. Trademark violations could also be alleged if Twitter users appear to have a relationship with a company or product when one does not exist or post tweets to dilute a trademarked name.

Suggestion 2 – The worlds of Twitter, and similar sources, are part of a new frontier. Rules of engagement are created by users and creators everyday. Twitter user @danmartell recently suggested not following anyone who doesn’t have a url associated with their Twitter profile. I see that as a matter “guaranteeing” legitimacy. It’s such an informal world at this time that a simple cease and desist to someone who appears to be misrepresenting themselves would seem to be enough. In regards to watering down a trademarked name… companies would be better served by bringing those folks who are talking about them into the fold than trying to silence them.


Potential Problem 3 – Twitter could also trigger more workplace retaliation and wrongful termination claims, whereby users will claim that they were retaliated against or fired over protected information they tweeted, such as being harassed at work or disclosing a safety violation.

Suggestion 3 – This one is tricky in that workplace retaliation and wrongful termination can be so difficult to prove. Are there any HR people or inside counsel with thoughts on this one?

Final thoughts from the article:

“Be careful what you say,” warned attorney Douglas E. Winter, who heads the electronic discovery unit at Bryan Cave and advises companies about emerging technologies. “Twitter, like any electronic communication tool, is subject to a wide range of potential liability,” he said. “I basically tell people that, yes, it’s a new tool, and it’s very trendy. But no electronic tool should be treated any differently as they emerge.”

Winter stressed that tweets are no different from letters, e-mails or text messages. They can be damaging and discoverable, he said, which could be especially problematic for companies that are heavily regulated and required to preserve and maintain electronic records, such as the securities industry and federal contractors. Twitter records would be one more compliance headache for these companies, he said, not to mention the possibility of privileged information getting out.

And the shorter tweets can be more vulnerable to misinterpretation, said Nolan Goldberg of Proskauer Rose, who sits on the firm’s e-discovery task force, known as the “E-squad.” “You can get yourself in a lot of trouble in 140-character [worth of] words,” he said. “You say it, and you don’t realize that it’s creating a permanent record on the Internet. It can go anywhere.”

Rod Sorensen, a management-side lawyer at San Francisco’s Payne & Fears who counsels employers on technology procedures, agreed.

“They’re quick sound bites and instantaneous, and as we know, instantaneous messages aren’t the most well-thought out,” Sorensen said of Twitter messages. “Someone could, for example, say something when they’re angry or frustrated. It opens the door to poor judgment. And, of course, as with other technology, once it’s released you’re not going to get it back.”

Twitter terms of service can be found here.

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