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
Contact

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

Written by:

Michelle Sherman
Contact
more
less

Michelle Sherman on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.