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:

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:

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. 

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:

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. 

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