Social Media and Your Employees

Based on the volume and intensity of questions we get from our employment clients, it is clear that they are spending a lot of time worrying about one issue: How should employers deal with the use—by themselves and their employees—of social media in the workplace? The specific questions include the following: Can employers use information from social media in hiring, firing and disciplining employees? Do employees have the right to criticize the company or their bosses in cyberspace? Can companies impose rules and policies to limit their employees’ use of social media? The general answer to all of them is that the law is largely the same as it has always been—social media have just made it a lot harder to apply. In this article we will explore some of the questions we hear most frequently and try to provide some general guidelines for answering them.

Hiring, Firing and Monitoring Employees in the Age of Social Media

An initial question here is whether companies can perform Internet and social media searches as part of their pre-hiring background checks. With respect to the Internet, the answer is usually yes. Most of the Internet is publicly available and thus fair game, and job applicants understand that. In legal terms, there is no expectation of privacy about material on the Internet. A harder question is how you can use what you find. The answer is to use common sense, just as you would about pre-Internet sources of information. Does the information seem to come from a reliable source, or from someone with an axe to grind? Be especially careful with sources that may have some discriminatory bias against the applicant—your company could end up being charged with the same bias.

The expectation of privacy issue is more complicated when it comes to information on social media sites like Facebook. Those sites usually offer privacy settings for users, but their effectiveness varies a great deal. The best guideline (although an admittedly vague one) is probably: do not use chicanery or intimidation to get access to information, and if you seem to be getting access to something that the applicant reasonably thought would be private, then don’t use it. And whatever you do, do it even-handedly to avoid any implication of discriminatory practices.

Similar considerations apply when it comes to using information from Internet and social media sources to discipline or fire employees. Ask first whether the information you are considering using would be considered—by the employee—to be public or private. A recent New Jersey case held that coercing an employee into granting access to a password-protected MySpace page was an invasion of privacy that violated both federal and state electronic information protection statutes. At least one court has also held that using keylogger software to access an employee’s personal email account may also violate federal law. And even if the company’s access to the information is lawful, it needs to ask whether what it learns is really relevant to the company’s business and the employee’s job performance. These issues came together in a recent Michigan case (Land v. L’Anse Creuse Public School Board of Education) where a teacher was photographed at a large but private party simulating a sexual act, the photo was posted on a public site without her permission, students saw it, and she then had it taken down. The court held that she could not be fired as a consequence, emphasizing both the unauthorized nature of the posting and the lack of connection between the teacher’s lawful—if tasteless—behavior and her ability to do her job.

To avoid legal problems like these, employers may want to consider adopting a policy that has the following elements:

• The policy should govern use of information gleaned from Internet and social media searches in the hiring and the evaluation process.
• The policy should explicitly negate any expectation of privacy an employee or candidate may assert in publicly available information.
• The policy should provide that the employer will verify information obtained through social media or online generally.
• The policy should provide that the employer will comply with various applicable laws, including state and federal electronic privacy statutes and federal labor law.

Blasting the Boss: Social Media and the Right of Employees to Engage in Concerted Activity

A related set of issues emerge when employees use social media to say things that can be construed as damaging to the company or other employees, or simply unprofessional. As elsewhere, the same laws and guidelines apply to social media activities as to other employee conduct—Facebook is the new water cooler. But applying that law can be difficult because online documents are permanent and can be instantly and widely disseminated.

As far as the law is concerned, a North Carolina statute (consistent with the law of other states, as illustrated by the Michigan teacher case) prohibits an employer from failing to hire or discriminating against an employee because the employee “engages in or has engaged in the lawful use of lawful products if the activity occurs off the premises of the employer during nonworking hours and does not affect the employee’s job performance or the person’s ability to properly fulfill the responsibilities of the position in question or the safety of other employees.”

In addition, federal labor law protects a wide range of “concerted activities for the purpose of collective bargaining or other mutual aid or protection”—that is, when two or more employees discuss compensation, hours or other terms or conditions of employment. In the social media context, recent opinions from the general counsel of the National Labor Relation Board have held the following to be protected concerted activities:

• Calling a supervisor a “scumbag” on a personal Facebook page during discussion of supervisory action with other employees;
• Requesting criticism of a co-worker and posting comments regarded by the co-worker as “cyber-bullying” as part of a Facebook conversation among several co-workers;
• Criticizing an employer’s sales event, along with posting embarrassing photographs, where employees were concerned about the effect of the event on their commissions; and
• Criticizing an employer’s tax withholding policies in a Facebook discussion among current and former employees.

Conversely, these are examples of perhaps offensive activities that are not protected:

• Posting by news reporter of unprofessional tweets, including criticism of a television station, where the tweets were not part of a discussion with co-workers;
• Facebook posting by bartender calling employer’s customers “rednecks,” saying he hoped they choked on glass as they drove home drunk, and criticizing employer’s tip-sharing policy, where no co-workers participated; and
• Facebook posting by employee at a nonprofit facility for homeless people about the employer’s mentally disabled clients, where the employee did not discuss her Facebook postings with any co-workers.

Given the case-by-case development of the law in this area, it is difficult to design an across-the-board policy to deal with instances of critical or unprofessional online activities. Instead—and like the courts—companies must evaluate each activity in question to determine whether it occurred on (see the next section) or off the job, whether it truly related to the employee’s job performance, and, even it would be otherwise unprotected, whether it might amount to “concerted activity.”

Policies for Use of Social Media on the Job

Integration of social media and the workplace is inevitable. More than half of all Americans now have a social media profile, and roughly 75 percent of medium- to large-scale companies have a presence on social media. Given the pervasiveness of social media, employers should develop and implement policies to govern employees’ use of social media on the job.

Because the decision whether to prohibit, permit or even encourage use of social media by employees requires employers to balance inherent tensions, there can be no one-size-fits-all social media policy. Social media taps unparalleled marketing potential, but also increases exposure to legal and reputational risks. Each company must balance these competing interests to fit its business and risk appetite. Still, there are general guidelines employers should consider when drafting social media policies.

As a preliminary matter, employers should develop separate policies for employees who use social media solely for personal purposes and those who do so on behalf of the company.

In the case of purely personal use, the key is to insist that employees separate information posted on social media from the company and the job. In particular, an employers’ social media policy should require that employees:

• Use their personal email account to set up social media accounts;
• Do not use company trademarks or other intellectual property;
• Avoid conducting company business on or through personal email or social media;
• Avoid discussing company business, products or services without permission;
• Maintain client and customer confidentiality; and
• Do not state or imply that they are speaking on behalf of the company unless expressly authorized to do so.

While separating social media from the job makes sense for most employees, there are other employees, such as sales representatives and marketing professionals, whom companies want to encourage to use social media as part of their work. For these employees, companies should coordinate with their marketing departments and counsel to develop specially tailored social media policies.

The key with regard to employees who use social media as part of their work is to treat social media like other forms of company communication. As the Federal Trade Commission made clear in its recently-published Guides Concerning the Use of Endorsements and Testimonials in Advertising, employees’ posts to social media must comply with the laws and regulations generally applicable to other forms of advertising. Thus, at a minimum, social media policies should require that employees (i) disclose their affiliation with the company before discussing its products and services and (ii) ensure that their statements are accurate and truthful.

Finally, companies should establish ownership over the information and content that employees post to social media as part of their job, as well as customer and client contacts. To that end, companies should obtain agreements from these employees assigning rights in content created for social media to the company. Companies should also consider entering into noncompetition, nonsolicitation, and nondisclosure agreements with employees who use social media in order to ensure that customer contacts developed through services such as Facebook and LinkedIn do not leave with departing employees.

Conclusion

While these various problems involve an often-confusing welter of legal rules, the best practices in each case come down to a few straightforward principles:

• Be careful not to invade your employees’ privacy.
• The best way to do that is to be very clear about what information you may collect and how you may use it.
• Make reasonable judgments about whether anything you learn is really relevant to the company and/or the employees job performance.
• Whatever you do, make sure you do it in a consistent and nondiscriminatory way.