Social media has become so commonplace that many employees engage in its use at work on a daily basis. Unfortunately, many employees demonstrate poor judgment while using social media by assuming that their posts are private and sharing confidential information they would not share in other formats.
Company use of social media in the workplace is also increasing. Human resource and other company professionals are using social media sites to screen potential employees, monitor current employees and obtain information about competitors or customers. This practice can create liability for a company absent a policy or set of guidelines for such professionals to reference, allowing them to make sure their behavior does not violate applicable law or expose the company to legal action.
Every company needs to consider the following general guidelines for social media use in the workplace:
Know the applicable law. It’s important for company leaders to familiarize themselves with traditional employment laws, as well as laws that affect social media policy. The National Labor Relations Act (NLRA) addresses union and non-union employee rights in regard to the use of social media and acceptable social media policy. Also, new Federal Trade Commission (FTC) guidelines provide regulations for the endorsement of products on social media sites.
Provide a social media policy. Determine what your company’s position is on social media use and monitoring. Provide a written policy that is clearly communicated to employees. Without a policy, employees don’t understand the company’s concerns and the potential exposure to legal damages, and human resource managers risk implementing social media policy inconsistently.
Protect trade secrets. Consider what your company’s current policy is on disclosure of trade secrets and confidential information and apply the policy to social media use. Social media engagement is casual, making it crucial that confidentiality concerns be addressed.
Train key employees. Supervisors, human resource professionals, and any other employees in the capacity of managing other employees should receive comprehensive training on the social media policy. This group is in charge of ensuring legal compliance and execution of the social media policy. Additionally, key employees may need training to avoid claims of online harassment, offensive behavior and discrimination.
Consistently monitor. Create a system for monitoring employees’ social media use. Consistent monitoring ensures compliance with your policy. However, make sure that you are monitoring in a manner that is legally permissible and does not violate employee rights of privacy or similar laws.
Seek protected information about an employee. Age, race, marital status, religious affiliation and political views can be considered protected information that an employer cannot use as a factor in hiring or any other employment decision. Generally, it is recommended to avoid examining job candidates on social networking sites that may give the employer protected information.
Punish employees for lawful activities. In most states, you cannot refuse to hire an applicant, or penalize or release a current employee because they engage in lawful activity (for instance, consuming alcoholic beverages) if the use takes place off of the premises during nonworking hours. Consequently, pictures and/or updates on social networking sites that may be perceived as poor judgment, if lawful, are not legal grounds for refusing employment or taking disciplinary action.
Violate privacy. Employees may expect that their social media activities are private and may limit unauthorized access. In an effort to gain access to information, employers should not take steps to undermine the privacy settings an employee has implemented on his or her social media profiles.
Infringe upon NLRB regulations. Employees are entitled, under the NLRA, to complain about terms and conditions of their job, as well as another worker’s performance. Furthermore, NLRA guarantees employees the right to self-organize, to form, join or assist organizations; bargain collectively through representatives of their own choosing; and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Therefore, prior to disciplining an employee for posts or activities on social media sites, the employer should make sure that such posts or actions are not an exercise of the employee’s NLRA rights.
As new social networks are formed online, there are many gray legal lines. The best thing you can do as a company leader is to stay informed. Keep your eye out for new laws and legislation and implement a comprehensive social media policy to safeguard your company and employees.
About The Guest Author: Heidi A. Carpenter, shareholder at the law firm of Fafinski Mark & Johnson, P.A., is a commercial attorney focusing her practice on providing counsel to investors, start-up companies, and closely held businesses of all sizes with business, corporate, transactional and employment law matters. Heidi has over 14 years of experience providing general counsel assistance to companies and their owners.
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