JUNE 14, 2011
Representative Weiner’s online conduct: a reminder to
employers about the dangers of employee misuse of social
media and company resources
By Renée M. Jackson
The scandal surrounding Representative Anthony Weiner’s exchange of sexually explicit photos and
messages over social media, e-mail, and text messaging highlights for employers the dangers
involving employee misuse of social media and company electronic equipment. Employers should
take this opportunity to understand the risks involving employee use of social media and company
equipment, create or update any policies addressing such use, and train supervisors and employees on
those policies.
First and foremost, the Representative Weiner scandal demonstrates the speed and scope through
which negative information can be circulated over social media and the internet. Representative
Weiner mistakenly shared a picture of himself—wearing only his underwear—with his entire Twitter
following. This picture was intended for one person, but quickly “went viral.” This underscores how
information intended for a private audience can quickly become public, and an employer can be
harmed in an instant as a result. Using social media, employees can easily criticize or ridicule the
employer or its customers in a way that leads to corporate embarrassment, public relations issues, or
a negative impact on the employer’s brand or image. In addition, employees can easily make
unauthorized or unintended disclosures of confidential company information, such as trade secrets,
proprietary information, and personnel matters. High-profile or executive employees can easily
damage the employer’s reputation and create a public relations nightmare by unintentionally or
carelessly disclosing offensive, overly personal, or sexually explicit images or messages.
This scandal also highlights the ease through which employees can damage the employer using its
own resources and technology. While Representative Weiner has claimed that he did not use
government resources or technology to exchange the various sexually suggestive messages and
pictures at issue (because he used his personal Blackberry), House Democratic Leader Nancy Pelosi
has called for an ethics investigation into his misuse of congressional resources. Indeed, new pictures
of Representative Weiner posing nearly naked at the congressional gym surfaced over the weekend,
calling into doubt his claim that he did not use congressional resources, and further bringing
Congress into a negative light. Regardless, this incident underscores an employer’s need to address
employee misuse of company-issued technology, resources, and workspace.
The “external disclosure” risk poses the greatest harm to employers, and is often the risk that
employers are least prepared to deal with and address quickly. All employers should have a social
media policy in place that covers such conduct and enables the employer to flexibly address any
internal discipline that needs to be meted against the employee. All employees should be trained on
the appropriate use of social media and all supervisors and human resources professionals should be
trained on how to consistently apply, enforce, and report possible violations of the social media
policy. Employers should make clear to employees that violation of the company’s social media
policy or misuse of company equipment or technology is grounds for discipline, up to and including
termination of employment.
Employers should be prepared to launch an immediate investigation into misuse of social media or
company resources, and into any underlying misconduct (e.g., sexual harassment, discrimination,
retaliation, hostile work environment). Employers should also consider designating a “crisis” team or
point-person to immediately address any external disclosure situations that might arise, so that a
delayed response does not worsen the damage. This team or point-person could be prepared in
advance to immediately respond to various external disclosure scenarios from a public relations
standpoint.
Employers should be sure to include in their technology and equipment policies a statement that
employees “have no reasonable expectation of privacy” in any messages, texts, or images sent using
company-issued technology or equipment. This will ensure that employers can use such messages,
texts, or images in an internal investigation into misconduct (indeed, United State Supreme Court and
New York State case law supports this proposition). Images of employees acting inappropriately in
the workplace require additional internal considerations: social media policies should specifically
prohibit posting of images depicting employees, customers, vendors, or business partners in the
workplace or wearing company logos without written approval from a designated individual
(marketing, human resources, or the like).
The scandal surrounding Representative Anthony Weiner’s exchange of sexually explicit photos and
messages over social media, e-mail, and text messaging sends a not-so-subtle reminder to employers
that employees can easily and quickly damage the company using social media and, often, the
company’s own equipment or resources. Employers should take the necessary steps to understand
the risks surrounding employee misuse of social media and company equipment, create or update any
policies addressing such use, train supervisors and employees on those policies, and be prepared to
address—both internally and externally—any incidents of misuse.
For more information, please contact your Nixon Peabody attorney or:

Renée M. Jackson at 617-345-1028 or rjackson@nixonpeabody.com
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