How companies should address employee use of social media

Laura Fleming, Shareholder, Labor and Employment Practice Group, Stradling Yocca Carlson & Rauth

There are more than 900 million active users on Facebook, the equivalent of nearly three times the population of the U.S.
“The challenge with social media is that employees are constantly posting comments regarding their work and personal lives on their own time as well as during work hours,” says Laura Fleming, Shareholder with Stradling Yocca Carlson & Rauth. The line between public and private life often is blurred, which complicates the situation for employers.
Smart Business
spoke with Fleming about the lawful use of social media in hiring, firing and other workplace situations.

Can employees be fired for using social media?

Most employees are ‘at-will,’ meaning they can be fired for any reason as long as it’s not discriminatory. As of now, there’s no law that explicitly prohibits firing an employee for behavior on social media sites.
However, some social media activity is legally protected. For example, civil rights laws protect employees based on their race, religion, disability, gender, sexual orientation, etc., so it could be unlawful to fire an employee for writing about religion on Facebook.
In addition, the National Labor Relations Board (NLRB) recently has targeted employers for firing employees who criticize working conditions on Facebook. The National Labor Relations Act (NLRA) was established to protect employees’ rights to engage in group activities to improve working conditions, especially through unionization. The NLRB has taken the position that employees complaining about working conditions on social media could be protected as if they were engaging in union activities. While a single employee on Facebook grumbling about an employer is not protected, if other co-workers join in — two or more, whether virtual or in real life — they may be protected under the NLRA.

Should employers conduct Internet searches to discover more about job applicants?

It’s prudent for employers to know who they are hiring and a social media background check can give you useful information. The problem is that embedded in this information are details irrelevant to the position and potentially protected. It can be a challenge to ensure that protected information doesn’t bleed into the hiring decision.
If you conduct an Internet search on an applicant be careful not to base any of your hiring decisions on information protected by civil rights law. In fact, some background check agencies will perform social media checks for you and screen out protected information so you don’t see it. You want to avoid creating any record that would show protected information was used in a hiring decision. In general, employers should avoid discussing any protected-category information during an interview and definitely avoid emailing such information to colleagues. Otherwise the applicant, having been denied the position, could claim that he or she was unlawfully passed over based on protected-category information discovered on a Facebook page or other social media site.

Can employers ask applicants and employees for social media passwords?

Right now, there are no laws specifically prohibiting employers from requesting personal social media passwords. However, Facebook has come out strongly against this practice, claiming it is a violation of its statement of rights and responsibilities to share or solicit a Facebook password. Also, in several jurisdictions, including Illinois, Maryland and California, there are movements to get laws passed to protect social media privacy. Regardless, any company that requests personal social media passwords risks lowering employee morale.
In addition, if an employer is trying to hack into an employee’s personal account without that person’s knowledge or coerce an employee to give up his or her password that could be a violation of the employee’s privacy rights or the Stored Communications Act.

Can an employer claim ownership of an employee’s Twitter followers?

In one high-profile case, an employee amassed some 17,000 Twitter followers and then tried to take the account with him upon his departure. There is an ongoing lawsuit to determine the rightful owner of the account, as well as the monetary value of the followers.
Because it takes time for the law to catch up to technology, there is not much legal guidance on how to determine ownership of social media accounts that are used for blended — work and personal — purposes. Thus, employers that engage in social media marketing should be careful to document their ownership of social media accounts. The employer should maintain and pay for the accounts, and prohibit personal use of the accounts.

How can employers protect themselves from social media-related claims?

All employers should have a social media policy, which safeguards several important interests. First, the policy should limit personal social media activities during work time or on work equipment. A recent survey found 64 percent of employees admitted visiting websites unrelated to work during work hours. Although it may be unrealistic to attempt to eliminate this activity entirely, to maintain a productive workforce employees must keep personal social media activity to a minimum. Second, the policy should prohibit employees from disclosing confidential and proprietary information online. The policy also should prohibit the use of social media to engage in any type of harassment of other employees.
Also, if a company is engaging in social media marketing, its marketing guidelines should comply with Federal Trade Commission regulations. For example, if employees are posting reviews of their employer’s products, they must disclose their relationship, among other requirements. Highly regulated industries, such as financial services and pharmaceutical/medical device, have additional restrictions on online advertising.

Laura Fleming is a Shareholder in Stradling Yocca Carlson & Rauth’s Labor and Employment Practice Group. Reach her at (949) 725-4231 or [email protected]

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