Social Media And Employers: Finding The Right Balance Between Two Extremes – Asking For Facebook Passwords And Thinking You Can Ignore Social Media

by Michelle Sherman

Every business – non-profit, school, private or public company – needs to be thinking about the legal issues surrounding social media and their employees. There are a growing number of examples of businesses making employment decisions based on the social activity of their employees, and then paying the consequences of guessing wrong on what they can or cannot do. One university considered information found on the Internet to question a job applicant about his religious beliefs and ended up settling a religious discrimination lawsuit for $125,000. A New York non-profit was ordered to rehire and pay back pay to five employees who were fired over Facebook posts in which they were complaining about criticisms of their job performance by another employee. Most recently, a state agency asked an employee for his Facebook password and set off nationwide alarm over privacy rights. 

Because social media is here to stay, businesses need to take the legal issues surrounding it seriously. The following are some areas where businesses need to be thinking about their approach to social media and employees.

1.  Does Your Business Have A Social Media Policy?

There are several reasons why every business should have a social media policy. A policy that is communicated effectively to employees may qualify the employer for a “safe harbor” under the FTC guidelines for online advertising should a rogue employee decide to post a favorable online review of the company’s products without disclosing that he works for the company. Having a policy is also evidence that the business is taking reasonable measures to protect its trade secrets by reminding employees not to disclose confidential proprietary information with examples by category of what the business  considers its trade secrets. A policy also sets forth guidelines for how employees should or should not act with respect to communications in association with the business, and a framework for sanctioning employees who violate the guidelines.

2.  Is Your Policy Overbroad (In Other Words, Is It From The Internet Or A Cut And Paste From A Sample Sent To You)?

The National Labor Relations Board (NLRB) has issued two reports in which it has told employers in loud, clear terms that the majority of social media policies in circulation are overbroad. The NLRB reports include case examples of overbroad language. The common errors running through these cases are employers doing one or both of the following: (1) trying to prohibit conduct that is protected concerted activity, such as complaining about work conditions, compensation and benefits with co-workers; and (2) using terms without defining them so they may be interpreted as possibly chilling protected activity, such as prohibiting employees from disclosing “confidential” information, or “disparaging” the company.

The NLRB said context is important in giving meaning to these terms so businesses need to include good examples of what they mean by prohibiting certain social media activity. The NLRB also stated that the social media policy should include language that nothing in the policy is intended to prohibit protected NLRA Section 7 activity. Social media policies should be specially tailored to the nature and concerns of the business. The “cookie cutter” approach of taking policies from the Internet has resulted in a flood of overbroad policies that will create problems for businesses when they try to enforce their policies.

3.  Do You Have A Documented Procedure For Researching Job Candidates And Employees On The Internet?

In response to some employers asking job candidates or employees for their Facebook passwords, there was a flood of articles discussing the issue. Setting aside the privacy concerns, and the fact that asking someone to share their Facebook password is a violation of Facebook’s terms of use, there is a third reason employers should not ask for social media passwords. Namely, a business is possibly opening itself up to employment discrimination lawsuits when it looks at social media activity. It is very common for people to share information that includes “protected” factors that cannot form the basis of making employment decisions on Facebook and other social media sites. In California, these protected factors include religion, political affiliation, sexual orientation, pregnancy and cancer, among other things. Put simply, it is risky to make an adverse employment decision when you have looked at social media activity that includes protected information.

This does not mean that your business cannot research employees and job candidates on the Internet. It just means that you need to do so with a documented, and thought through procedure that distances the person searching the Internet for information from the people making the employment decisions. Protected factors should be identified and not included in any reports that the employment decision makers are reviewing.  Further, the policy should clearly state that people conducting interviews or making employment decisions should not be researching candidates on the Internet, but should follow the procedure established by the business for gathering this information. Alternatively, there are companies such as Social Intelligence that will gather this information for businesses. When using an outside vendor, however, the business needs to comply with the Fair Credit Reporting Act. This subject is covered in more detail here.

4.  Is Your Business Ignoring The Wealth Of Publicly Available Information On The Internet, And Possibly Making A Negligent or Uninformed Employment Decision?

Because employers can be held liable in some circumstances for the negligent hiring of an employee who harms or injures a co-worker or third person, employers need to take reasonable measure to screen job applicants. The harm that an employer is trying to avoid may include, for example, an employee who harasses or discriminates against co-workers, or sexually abuses children entrusted to him, or steals private credit card information from customers. Today, these reasonable screening measures arguably include searching the Internet and social media to uncover information that may cause an employer to think twice about hiring someone. This does not mean that the employer should take what they find on the Internet completely at face value. However, it does mean not turning a blind eye to social media and ignoring it entirely when it comes to making employment decisions. The Internet and social media can be a good resource for finding relevant information about job candidates.

Most recently, newspapers were covering the story of a foreign policy spokesman retained by Governor Mitt Romney in connection with his presidential campaign, who ultimately resigned after some Romney supporters complained vocally about tweets on the spokesman’s Twitter account. As reported in the NY Times, “a campaign known for its no-stone-unturned meticulousness overlooked his electronic footprints:  namely dozens of cutting Twitter postings.” This is not to say that the objections to the Twitter activity were right or wrong.  However, it does highlight why employers may want to remember to research someone’s “electronic footprint” when hiring for some positions in the company.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Michelle Sherman, Michelle Sherman | Attorney Advertising

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