Although a deep dive into legal realities is beyond the scope of this post, I want to provide some examples of the kinds laws and regulations that organizations and their leaders must be aware of and act in accordance with. We’ll start with a few of the most important commercial laws. These include regulations that address things like the protection of proprietary and confidential information, trade secrets, and intellectual property. A person may think there’s “no harm” in discussing work-related matters in their personal social networks, especially if they have high privacy settings, but doing so could be a legal violation that could cost them their job. Copyright and trademark infringements also create potential risks, even when well-intentioned. And finally, the laws of agency apply to any communication that’s done on an employer’s behalf, even if it may be done through a personal social networking account.
In addition to general commercial laws, there are a host of additional rules that primarily affect employees in regulated industries. In some cases, traditional rules are being applied to cyber interactions; in others, new rules have been created to explicitly address digital communication. The SEC, for example, has developed rules for publicly-traded companies and their officers and employees. FINRA has created regulations regarding the actions of financial advisors and organizations, and HIPAA focuses on individuals and organizations in the health-care industry. It’s worth noting that these regulations can be applied to all individuals who work in regulated businesses, even if they themselves aren’t in a regulated profession.
Furthermore, some regulations apply to people even if they aren’t in a regulated industry. The FTC’s rules regarding appropriate disclosures basically require anyone with a material relationship to a specific organization or brand to disclose that relationship if they’re discussing the organization or brand in cyberspace.
There are also a host of employment related laws that must be understood in a Digital Era context, by both employers and employees. In the next section I address non-solicitation and non-compete laws, as well as distracted driving rules. In addition, anti-discrimination laws, anti-harassment laws, and defamation laws can also be applied to people’s digital identities and interactions.
Other relevant laws include the Fair Labor Standards Act (FLSA), for which the definition of “work time” is key. If an organization has a cloud-based digital platform and a non-exempt employee accesses it when he or she is not officially working, for example, is that time compensable? How must BYOD (Bring Your Own Device) policies reflect FLSA stipulations?
One of the most advanced employment law areas when it comes to social technologies in particular is the National Labor Relations Act. Although this law is generally perceived to apply to organizations with union employees, it actually applies to all organizations. The related administrative body, the National Labor Relations Board, or NLRB, has been very proactive when it comes to social and digital technology, taking many employers to task for either not having social media policies or having policies that are so broad they produce what’s referred to as a “chilling effect.” This refers to situations in which employees are hindered from discussing terms of their employment in a way that could be considered protected speech and/or collective action.