By MATT CHANDLER
Buffalo Law Journal

"BAD day at work. Can't believe we just lost our biggest account. Rumor that layoffs will be coming soon!"

What might seem like an innocent status update on Facebook or a tweet on Twitter could carry significant legal consequences, according to Scott Horton, an attorney with Jaeckle Fleischmann & Mugel LLP who specializes in the legal navigation of social media.

Horton spoke to more than 200 business professionals eager to learn how to leverage social media for their companies as part of a breakfast forum held Thursday at Salvatore's Italian Gardens.

So what is wrong with that "innocent" post about your bad day? Well, suppose you work for a publicly traded company - you just leaked inside information about huge revenue losses and company-wide layoffs that as unlikely as it may seem, could have huge legal implications if it were to lead investors to sell their stock.

While that example may seem extreme, Horton said issues such as sexual harassment, discrimination and defamation are all very real and increasingly becoming a risk as employees tweet, blog, and Facebook (yes, it is becoming a verb) their every thought. As for employers who think they aren't liable for what their employees say or do online, Horton says not so fast.

"The case law on a lot of this social media is still underdeveloped," Horton told the group. "Just because it takes place on Facebook doesn't mean it doesn't come back to the employer. If it can be connected to their employment, it can be raised as an issue of liability for the employer."

Horton's advice - every company large and small should have a social media policy in place.

"While common sense should dictate action," he said, "not everyone has that common sense."

Horton also said there is not always a clear-cut sense of how much control employers can have over their employees when it comes to social networking. With the popularity of hand-held devices such as the Blackberry and iPhone, simply blocking employees' access to certain sites isn't enough. Keith Burtis, who consults with businesses on these issues and served on the discussion panel with Horton, said social media is a 24-hour-a-day reality that can't be controlled during work hours.

"Every one of these social networks asks you who you work for and what you do," he said. "So even at home, your employees are still representing your company."

Horton said there are a host of legal complications when it comes to the rights of employers to access their employees online information and to take action when it comes to finding something they don't approve of on a social networking site.

"Employers will Google a potential new hire and end up finding photos of the person drinking alcohol, or not fully clothed," he said. While that may be troubling to the employer, Horton said it may not be legal grounds to deny that individual employment.

"There is a state law that prohibits discrimination for legal recreational activities done on personal time," he said, though that too, is a gray area. While an employee posting photos drinking alcohol may not be grounds for termination, should the employee be wearing a company uniform, or have something in the photo that can identify their employer, there may be cause for action Horton said.

"The reality is, the laws and the courts have not caught up to the technology," he said. "It may take five or 10 years for them to catch up and until then, there will be this gray area."

On a panel that was largely focused on the benefits to utilizing social media, Horton said it wasn't his goal to come across as the doom-and-gloom side of the issue, but rather to balance the discussion and remind people of the risk and responsibility that comes with using online social networking sites.

"Social media is here to stay and it can be tremendously valuable for businesses," he said. "But there needs to be involvement by management at every level of the business to make sure you are following the right path and doing things right."

Robin Wilson of The Wilson Edge & Buffalo Graphics offered an example of companies taking one of the unnecessary risks that Horton spoke of.

"I don't suggest that you have your interns to handle your social networking, but it happens all the time," she said. "Companies are putting their free summer interns out there to speak on behalf of their company."

On the flip side, Burtis said all of the elements that are risky about social networking - putting too much information out there, reaching potentially unlimited people with the click of a mouse and having any and all of your employees networking on company time - are also what makes it such an exciting and potentially profitable tool for businesses.

"These social networking sites are the telephone on steroids," he said. "They are the greatest marketing tools for business that we have ever seen."

As the panel shared stories of great successes selling products, handling customer service issues and effectively marketing businesses for little or no cost via social networking sites, an audience member posed the question of whether or not social media would someday spell the end to the traditional sales and marketing model. Karen Renzi of Beyondus Inc. believes there is room for both.

"It is all about integrated marketing," she told the group. "I don't think social media is going to replace other forms of marketing, but I do think it can blend in so well and be more effective."