Tweet, Follow, Or Get Out Of The Way: What All Employers Need To Know About Social Media In The Workplace

by Akerman LLP - HR Defense
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Facebook. Twitter. LinkedIn. YouTube. Blogs. Email. Texts. Social media in the workplace has become a fact of life for all employers. Companies are learning that these once feared social media sites can be powerful marketing tools, but also provide an open door for risk.  Employees can post or write things in these media that create liability for their company, cause public relations problems, or damage profits. 

Some companies initially reacted to these threats by shutting down employee access to these social networking tools in the workplace.  Then came "apps" which enabled employees to engage in social media at work, but on their own, personal iPhones and similar devices.  Is creating a policy eliminating access on the employer's network the solution, or does it fail to address the problems that can be caused by employees posting to these sites, and writing personal emails and texts, at work and at home on their own time using their personal devices?

Social media has become a powerful tool for employers to use in the pre-employment and hiring process.  But how far can an employer go?  Google searches may or may not be ok, but what about checking Facebook pages and Twitter feeds?  Some employers request Facebook passwords from applicants – is that appropriate?  Or worse, is it even legal?

Legislation protecting employees' and prospective employees' social media profiles on sites like Facebook and Twitter has already been passed in California, Illinois, Maryland and Michigan.  Password protection laws are moving their way through state legislatures in various other states including New York, Texas, Massachusetts and several others. So far, the Florida legislature has yet to enact a password protection law, and is not currently considering doing so.  Despite the absence of such a law in Florida, it is not recommended to demand social media passwords from your employees and applicants!

Once an applicant is hired, what rights does he or she have to voice complaints about their workplace or supervisor?  Facebook has become the modern day water cooler, a place for employees to vent their frustrations about work and the workplace.  But what restrictions – if any – are placed on the employer for disciplining the employee (like the dreaded "Facebook Firing") for making negative comments through social media?  During the past 2½ years, the National Labor Relations Board – through its Acting General Counsel, Lafe Solomon – has inserted itself into this discussion.  AGC Solomon and the Board have reviewed hundreds of cases involving "Facebook Firings" or similar, disciplinary action against employees based on actions taken by the employees on their personal social media pages.  While in some cases the firings were upheld, in many instances the Board found that the firings violated the National Labor Relations Act.

Join me at the 18th Annual Akerman Labor & Employment Law Seminar where we will discuss these and other issues related to social media.  Hope to see you there!

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.

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