Employers must address their use and misuse before, during and after an employee’s tenure.
Social media are any type of Internet-based media created through social interaction in which individuals primarily produce, rather than consume, the content. In the workplace, the prevalent social media are video-sharing Web sites (YouTube), social networking Web sites (Facebook, MySpace, LinkedIn, Twitter), online multiuser virtual worlds (Second Life, World of Warcraft) and personal or corporate blogs.
The increased use of social media in the workplace, by employees and employers alike, presents both opportunities and risks for employers because social media now permeate the entire life cycle of employment: during pre-employment inquiries, throughout the period of employment and after separation from employment. Employers must consider and address the use and misuse of social media at each stage.
Employers can now access more information about applicants through social media than was previously available through traditional hiring practices. On Dec. 9, 2009, a privacy policy change affecting all 350 million Facebook users made each Facebook user’s name, profile picture, current city, gender, networks, list of friends and list of “pages” publicly viewable by other Facebook users and also set some users’ photo albums to public. Only through obscure privacy settings can Facebook users affirmatively make some, but not all, of this information private.
Through standard disclosures such as these, or through voluntary disclosure of other personal information such as commentary and photos, applicants may reveal more information about themselves through social media than they normally would during the hiring process. In making hiring decisions, employers can lawfully use information relating to an applicant’s illegal drug use, poor work ethic, poor writing or communications skills, feelings about previous employers and racist or other discriminatory tendencies. Employers may also lawfully consider an applicant’s general poor judgment in maintenance of his or her public online persona.
Employers, however, 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.
Employers should consider whether the benefits of using social media to screen applicants outweigh the risks. If an employer wants to supplement traditional hiring practices with a social media search, the employer should consider the following approaches.
- Employers should screen applicants in a uniform manner by creating a list of the social media they will search for each applicant and the lawful information about each applicant desired from the social media search. If all applicants cannot be screened using the lawful criteria because an employer does not have the time, resources or inclination to do so, employers must be consistent, objective and nondiscriminatory in selecting subsets of applicants to screen.
- Employers should have a neutral party, such as an employee in a nondecision-making role, conduct the social media search, filtering out any protected class information about the applicant and reporting only information that may lawfully be considered in making the hiring decision.
- Employers’ representatives should not “friend” applicants in order to gain access to their nonpublic social networking profiles.
- Employers must be able to point to a legitimate, nondiscriminatory reason for the hiring decision, with documentation to support the decision.
- Employers that are considering making an employment decision based on information found in social media should consult with counsel prior to doing so.
DURING EMPLOYMENT
Employee use of social media can result in external business generation and internal creation of a collegial atmosphere through less formal interaction and shared experiences between co-workers. On the other hand, employee use of social media can create awkward and potentially harassing situations when such use turns inappropriate.
For example, when a supervisor wants to be a subordinate’s friend on a social networking site, it can create awkwardness between the supervisor and subordinate. If the subordinate accepts the invitation, the supervisor can access the subordinate’s potentially inappropriate or revealing nonpublic profile. If the subordinate doesn’t accept the invitation, he or she may be concerned that his or her employment opportunities may suffer or that the supervisor will be offended. In more extreme cases, misuse of such sites can give rise to claims of co-worker or supervisor sexual harassment or hostile work environment.
The most obvious hazard regarding the use of social media during employment is internal to the organization: Employees may spend so much time using social media during working hours that productivity decreases. However, the biggest risk of social media in the workplace is external employee misuse: Employees can easily make unauthorized disclosures of confidential company information, such as trade secrets, proprietary information and personnel matters. Employees can easily disparage the company or its customers in a way that leads to corporate embarrassment, public relations problems or damage to the employer’s brand or image.
To address these risks, employers must first consider the proper level of encouragement of social media use in the workplace. For some industries or positions, the use of social media might be appropriate for business development. For others, an outright ban may be appropriate because the work force has no business reason to use social media at work or while using the company networks, facilities or equipment.
At a minimum, employers must insert broad language encompassing social media into existing information technology, code of conduct, harassment and confidentiality policies. Employers should consider adding the following features, if appropriate, to such policies:
- A clear statement that misuse of social media can be ground for discipline, up to and including termination.
- A prohibition on disclosure of the employer’s confidential, trade secret or proprietary information.
- A request that employees keep company logos or trademarks off their blogs and profiles and not mention the company in commentary, unless for business purposes.
- An instruction that employees not post or blog during business hours, unless for business purposes.
- A request that employees bring work-related complaints to human resources before blogging or posting about such complaints.
- A prohibition on using company e-mail addresses to register for social media sites.
- A prohibition on posting false information about the company or its employees, customers or affiliates.
- A general instruction that employees use good judgment and take personal and professional responsibility for what they publish online.
- A demand that all employees with personal blogs that identify their employer include a disclaimer that the views expressed on the blog are those of the individual and not the employer.
All supervisors and human resources professionals must be trained in the appropriate use of social media and how to consistently enforce the employer’s social media policies. Any policy addressing social media during employment must use broad language and be updated frequently because social media will change quickly over time. Employers should consider incorporating language specifically referencing social media into the confidentiality provisions of separation agreements.
THE RECOMMENDATION DILEMMA
Even post-employment, social media creep into the relationship between the employer and the former employee. Supervisors and co-workers are increasingly asked to “recommend” former employees on LinkedIn after separation from employment. This “recommend” feature allows people in a professional network to write positive professional reviews about other people in their network, which will be visible on the former employee’s LinkedIn page.
A positive recommendation on a person’s LinkedIn page is the same as an employment reference, and should uniformly be treated as such under the employer’s post-employment reference policy. Employers could also consider adding to their post-employment reference policy a prohibition on managers from “recommending” or commenting on the job performance of former employees via social media without prior specific authorization from the human resources department.
The takeaway message regarding social media in the workplace is that employers can no longer ignore the risks. Employers must be cautious in addressing these emerging workplace issues, even though employment-related litigation over social media is in its infancy. First, employers must understand the myriad issues surrounding social media in the workplace in order to strike the appropriate balance in the eyes of their employees and the law. Then, employers must craft appropriate policies and procedures regarding social media that are consistent with their industry and firm culture, and apply such policies in a consistent, objective and nondiscriminatory way.
Renee M. Jackson is an associate in the Boston office of Nixon Peabody and a member of the firm’s labor and employment practice group.
www.law.com
No comments:
Post a Comment