Social Networking communications are truly a new mode of communication and have evolving workplace implications.  Facebook, LinkedIn, YouTube, and Twitter have altered our sources of “information”, democratized the voice of people and now present challenges for employers in ways that are not always obvious.  Many of these social media formats and technologies, such as blogging, video-sharing, tweeting and networking, help companies in recruitment, marketing, connecting with customers and corporate communication efforts.  While these same social network sites provide a beneficial forum for employees to communicate, there are risks associated with employee social media use. These risks drive the need for organizations to clearly define policies regarding media use.

Prevalent Use of Social Media at Work

According to a 2009 survey conducted by Deloitte LLP, 55% of employees visit social networking sites at least once a week and 20% admit to visiting social networking sites during work hours. (Based on reports from our clients, we believe workplace visits are much higher and growing). The survey also states that 33% of employees do not consider the business implications of internet postings. Imagine the disgruntled employee that failed to receive a promotion and rants about it on Facebook, or even worse, an employee who feels compelled to release information about an upcoming furlough or office romance.  With the prevalence of these social medial sites, one must consider the reality that employees can post anything on the internet at any time, and reach a world-wide audience, with virtually permanent written material.

In prior Bulletin articles, we have discussed the impact of sourcing and “researching” prospective employees through social networking sites.  The practice has been increasingly widespread, but perhaps with legal landmines.  According to Market Watch, studies show that more than 40 percent of employers have searched Facebook and other social networking sites to obtain information about applicants. Moreover, when they discover negative information on these sites, more than 80 percent of employers state that they factor that information into their hiring decisions.  This practice however, may have dangerous legal implications.

Recent Cases of Legal Action

In a recent report on CNNMoney.com, a 22 year old candidate for a position with Cisco, posted a tweet on the micro-blogging site, Twitter.  She wrote: "Cisco offered me a job!  Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work."  A managerial employee saw the post and responded with the tweet; "Who is the hiring manager?  I'm sure they would love to know that you will hate the work.  We here at Cisco are versed in the Web."  While the applicant apologized on her personal blog, explaining that she was merely being sarcastic and had already rejected the offer, the issue is clear; applicants and employers needs to consider policies and procedures regarding social media.

The repercussions reach beyond unfavorable press for companies, the results can lead employers to the courtroom.  For example, one court allowed a civil-rights class-action lawsuit against a major metropolitan police force because the employer was allegedly aware that some employees maintained a racially offensive website.  In contrast, employers are often conflicted about appropriate actions to take in response to discovered postings by employees.  In some cases, employers have been found liable for using information posted on social media sites as the basis for adverse employment actions. For example, a national restaurant chain terminated an employee for posting derogatory statements on a MySpace account, and then was found liable for improperly accessing the postings under the Stored Communications Act of 1986. In another example, a major airline is defending itself in court after terminating a flight attendant who posted pictures of herself in airline uniform that were deemed “racy” on her "queen of sky" blog.

Navigating the Policy Issues

So, what is an employer to do?  First and foremost, employers should revisit their electronics communications policies and determine if it they are sufficient to cover this form of media.  Employers can regulate, and even prohibit, their employees from engaging in online social networking activities while on company time, property or business. However, does this strict stance make business sense and contribute to employee morale? Increasingly, employers encourage staff to communicate, connect with customers, and even monitor company Facebook sites.  How then can you prohibit employees from accessing these sites while at work?

When defining company policy, employers should consider how to regulate what an employee writes about the company and whether you should require employees to identify their employment status when discussing the company in any public forum (including online forums) or to notify readers that they are speaking in an individual capacity.

When assessing the details of a social medial policy, employers should consider:

  • Defining what is prohibited on employee profiles or logs such as postings that imply employer sponsorship or support, use of logos, and disclosure of information regarding the company's clients, business partners, or details of a particular engagement.
  •  Ensuring that employees remain respectful of the company's products or services. When employees complain about pay, benefits or policies it may very well be protected activity, but denigrating the quality of the company’s service or products is unacceptable.
  • Firming that anything obscene, discriminatory, harassing, or embarrassing to a fellow employee must be forbidden.
  • Make it clear to employees that they should expect compliance monitoring, meaning that any information they create, transmit, download, exchange or discuss on any social media may be accessed by the company at any time without prior notice.

Significance

As social media and the resulting impact of its use continues to grow, employers need to reexamine their electronic communications policies to protect confidential information, reputation, and trade secrets and ensure that social networking is serving, not sacrificing, their business. Addressing a well thought out social media policy that fits your organization will help protect employers against liability and litigation (from both outside and within the organization).  More regulation in area will be forthcoming. The Equal Employment Opportunity Commission (EEOC) is considering the role that social media might play in actions under the Genetic Information Nondiscrimination Act (GINA), which became effective November 2009.  GINA prohibits employers from making employment decisions based on genetic information, including family medical history.  Because individuals might post such information on social media sites, employers easily could obtain such information.  The issue at hand for the EEOC is that information made available to the public is equally available to employers. 

For now, employers need to effectively navigate the proper and effective use of social media, by taking steps to mitigate risk by developing appropriate policies.