Sunday, October 22, 2017

Social Media in the Employment Arena – It Gets Funky!

Posted by OnCourse Staff December 31, 1969 7:00pm

Photo Credit: Milalie F.

This blog is composed knowing full well it is the intention of my firm, P&G Associates, to post on our website, corporate blog, tweet it, post in on our corporate Facebook page, and other social media services.  Use of social media (defined as any services that distributes, shares, and makes available content over the internet) has exploded.  It is reported that Facebook has more than 500 million individual users around the world.  Social media can be a very dynamic took for business development, branding, and customer loyalty efforts. There are very legitimate business needs and benefits for companies to utilize social media. Those that do not utilize the advantages can be missing a huge opportunity to connect with clients and vendors in a very meaningful way. However, it also contains a snake pit of risk as it pertains to the employee/employer relationship.  To make matters more complicated, the law and company policies cannot keep up with advances in technology.  With social media and employment, it gets funky - especially when events that transpire outside of the workplace creep into the workplace. 

While dealing with social media, how you get the information is sometimes more important than what the information reveals about what your employees are saying.  Below is a sample fact pattern that many of us have either faced or will face in the future:

  • Jane, an employee of XYZ Company, posts a negative comment on her Facebook page about the hours she has to work.
  • Joe, a co-worker of Jane’s at XYZ Company, replies to her post that in addition to the poor hours, the pay is terrible and the working conditions are poor. 
  • Mark, a Manager at XYZ Company becomes aware of both Jane’s and Joe’s comments through another employee, Sally.  Sally is “friends” with Jane and Joe on Facebook and normally reads the posts of her “friends.”
  • Mark terminates Jane and Joe for their posts, citing they violated the XYZ Company social media policy. 

Do you believe the termination of Jane and Joe was legal?  If you answered, yes, Mark should have terminated both Jane and Joe you are wrong.  In a similar case, the National Labor Relations Board issued a complaint against the employer citing employee postings are “protected concerted activity” under Section 7 of the National Labor Relations Act.  Section 7 of the NLRA protects an employee’s ability to join (or not join) a union and it allows employees to engage in discussions concerning matters related to the terms and conditions of employment. The NLRB commented that social media sites are the new water coolers, and as such it matter less the method of how the communication occurred but what was actually communicated.  Social media in the employment arena is funky. It gets more complicated. Check out this fact pattern:

  • Paul, Alice, and Martha all work for ABC & Co. and they create a password protected, members only website.  On the website, they discuss issues pertaining to terms & conditions of employment, which as noted above is a protect activity.
  • Martha gives the password to Sally to join the website. 
  • Pattie, a manager at ABC & Co. learns about the website and tries to gain access. Since she does not have the password, she asks Sally for the password one day over coffee. 
  • Sally relents to Pattie’s request and gives her the password.
  • Pattie terminates Paul, Alice and Martha for the materials on the website.

The question is: Are the terminations valid and why? We know the communication itself is protected under Section 7 of the National Labor Relations Act, so that can’t be the answer.  The terminations are not valid; they violated the Stored Communications Act.  As this is an HR related blog, you are scratching your head wondering how the Stored Communications Act enters the employment context.  Like I said, when dealing with social media issues, it gets funky.  In the fact pattern above, Pattie gains access to the website through unauthorized means, though she was not an invited member of the group, thus violating the Stored Communications Act.  In addition, Pattie might also face issues of harassment, as she possibly coerced the password from Sally. As employers, how can I create an effective social media policy?

As with all human resources policies, consistency in the application of the policy is important. Social media policies need to look at the entire employment lifecycle: pre-hire, during employment, and post-employment.  Using social media as part of your decision making process concerning employment based issues (hire, fire, promote, salary increases and etc.) can be dicey and often can lead to an unintended discriminatory claims. The steps outlined below are a guide.  It is recommended that you consult an attorney to discuss the specifics of your social media policy as each company has specific requirements. 

  • While using social media during pre-employment, it is imperative that you do not use information in a discriminatory manner.  Information obtained from social media sites pertaining to an applicant’s race, gender, age, or any other protected class status is off limits.  However, information on an applicant’s off-work behavior, such as illegal drug use, poor writing or communication skills, racist or derogatory comments toward other individuals can be used in making the hiring decision.  When designing your pre-hire social media policy consider the following:
  • Screen all applicants in the same manner using the same social media sites.  If you screen all applicants before their first interview, then ensure that every applicant is screened.  Again, consistency is important.  Do not screen some applicants before the first interview and some after the first interview.  That might have an unintended discriminatory impact.
  • Have an individual not in the hiring decision chain do the screening.  This individual should be trained only to report back information that does not pertain to an individual potential protected class status.
  • This is very important.  The screener should not “friend” the applicant in an attempt to gain access to private information.  
  • Keep documentation to support why you choose one applicant over the other to show the hiring decision was made in a nondiscriminatory way.

Using social media as a pre-screener can be risky; however, the steps outlined above can help mitigate the risks.  

Your current employees are using social media sites on a regular basis whether you like it or not.  Your policy toward social media should include a provision that engaging in personal social media services could violate the company’s anti-harassment policies should issues spill into the work place. Additionally, your policy should include the following:

  • Clear statement that misuse of social media can be grounds for disciplinary action, up to and including termination.
  • Prohibition against sharing private, confidential, trade secrets and proprietary information.
  • Prohibition that they not use company logos, slogan, or trademarks.
  • Instructions not to engage in social media services while on company time, even if they are using their personal devices (i.e., smart phones).
  • A request to bring work related issues to Human Resources before engaging in social media to complain.  The idea is to give the company a chance to remedy the issue before the employee tells the world.
  • Prohibition of using company emails to register for social media sites.
  • Prohibition of posting false information about other employees, vendors, clients.  Additionally, they should not plagiarize materials composed by others without giving proper credit.
  • If employees are going to engage in social media to discuss their own opinions while mentioning the name of the company, a vendor or client they should add a disclaimer that this is their private views and not those of the company.
  • Anyone in the management chain should not “friend” subordinates. As discussed above, this can raise questions on how the company finds out what employees are saying on social media services and might violate various laws. This can be a very hard item to enforce as many employees become friendly with each other. It goes without saying that Human Resources professionals should not “friend” others in the organization.

Things get even dicier during the post-termination phase, if that is possible.  Services such as LinkedIn make it easy for individuals that have left your company to update their new contact information in an instant. Is this a violation a non-compete agreement as your customers and vendors, in an instant, are notified of the employee’s new employment information? There is no clear answer to this issue.  Additionally, services such as LinkedIn allow for referrals and comments on past performance.  Your policy should treat these like all job references and should be filtered to Human Resources or to the individual assigned to answer these inquiries. 

Social media in the employment arena can be funky.  Whereas social media services can be great tools, they can be a real nightmare for human resources.  A few things to always keep in mind before taking an employment action: (1) how did I receive the information (2) what should I do with the information, and (3) am I applying the information in a consistent, non-discriminatory manner? This is not always going to keep you out of the snake pit, but it might help reduce the amount of times you get bitten. 

Sources:

  • Campell, Marcus and Gregory Ripple. “Facebook Firings: Social Media and Employment Laws” April 6, 2011. LexisNexis, www.martindale.com
  • Jackson, Renee.  “Social media permeate the employment life cycle” January 11, 2011. The National Law Journal, www.nlj.com
  • Segal, Jonathan. “Dancing on the Edge of a Volcano: From hiring to harassment, social media can explode on employers.”  April 2011.  HR Magazine.  Pages 83-86.

 

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