Employers Should Tread Carefully When Addressing Social Media Use

Amazing advances in technology are allowing business owners and employees to become more efficient and productive. But these advances bring more and challenging employee issues that impact our businesses.

One of the newest and more complicated aspects that employers must consider is the ever-changing case law surrounding the growing phenomena of social media. Agencies that enact and enforce employment laws are scrambling to keep up and the courts are interpreting, creating laws and adjusting the way we handle these issues in our businesses.

Use of social media is continuing at an exponential rate, increasing not only with employees under the age of 30 but with employees over 50 as well. Social media use for those 50 and older increased from 22 percent in April 2009 to 42 percent in May of 2010 according to the Pew Research Center’s 2010 Report on Older Adults and Social Media.

As business owners and managers, there are ways to limit your liability surrounding this issue. Some examples of things you should consider:

  • Avoid using social media to investigate potential employees. Information discovered about potential employees from social media can leave you open to claims of discrimination for race, religion, national origin, disabilities and other protected class items as well as factors such as arrest records (which are being increasingly scrutinized under the current federal administration). Recently it has been reported that some employers or prospective employers have asked for or demanded access to potential employees’ Facebook passwords in order to view their activities online. Government intervention in this matter has been swift, with legislation introduced and passed to prohibit this practice.
     
  • Avoid disciplining or terminating employees for complaining about the company or their manager on social media sites. Under the National Labor Relations Act, employees have the legal right to discuss (or complain about) their wages, hours and working conditions publicly. Disciplining or terminating employees for these activities can result in unfair labor practice charges for you even if you are a non-union employer! Additionally, if you terminate an employee for expressing an opinion, you could be required to return the employee to work with full back pay. As always, it is important to keep an open-door policy to allow your employees to share concerns with you rather than posting them online.
     
  • Don’t allow managers to respond to requests for employee or professional references via LinkedIn or other social media sites. References should always go through the formal request process under company policy.
     
  • Be proactive and put a social media policy in place if you do not already have one. There are a number of items that you can include in your policy. A sampling would include:
    • Prohibit employees from using company computers to post to social media.
    • Inform the employees that they are not allowed to speak for or represent the company on social media sites without written approval of the company.
    • Prohibit comments that threaten demean, discriminate or harass any employee, associate, or customers of the company.
    • Don’t allow employees to use the company name, logo, photos of company products, photos of employees or customers or photos of company property in social media postings.
    • Don’t allow employees to link to the company website from their social media postings.
    • Train employees on the social media policy.

BCN Services is diligent in monitoring the ever-changing employment law landscape in order to keep our clients compliant. As always, we are here to answer your questions or assist you with any questions, concerns or issues you may have. Call or contact us here.

 

Jeff Walsh, Partnership Manager