Studies have shown that more than 50 percent of teens and college students have a personal profile on social networking sites such as Facebook, LinkedIn, MySpace or Twitter. Tapping into that goldmine of data for human resource and business development initiatives may be tempting but could land your company in legal trouble if you’re not careful.
Also, as technology has advanced to allow remote access from home and mobile devices, the line between personal and business use has become blurred.
“It’s an immense challenge to oversee that employees maintain their work standards without running afoul of any issues that come about from using social networking sites,” says Sheri L. Giger, Jackson Lewis LLP.
Smart Business spoke with Giger about how to avoid the potential dangers of social networking while still reaping the benefits.
How can employers craft an effective electronic communications policy?
It’s important to find ways to minimize employees’ expectations of privacy. There arguably is a reasonable expectation of privacy for some electronic communications of employees, such as their e-mail, but if an employer has a policy or practice in place that minimizes that expectation of privacy, it places that employer in a better defensive position. Courts are more inclined to rule in favor of an employer if the employer owns the computer and e-mail system, the employee voluntarily uses the employer’s network, and the employee consented to be monitored, as stated in a written company policy.
What should employers consider when crafting an electronic communications policy?
First, it should be clearly stated that all computer systems and electronic equipment are designed primarily for business use. Many employers are now using the term ‘primarily for business use’ because of how technology has flourished. Employees won’t only use a BlackBerry for business e-mail when they may need to send a message to a spouse about picking up a child from daycare. This type of use can be difficult or too time consuming for an employer to monitor. Any excessive personal use during work time can still result in disciplinary action, but ‘primarily for business use’ is simply more practical to administer in today’s business world.
Second, employees need to abide by any nondisclosure or confidentiality policies or agreements the employer has established. Third, employees expressing views about the company in a nonbusiness setting on blogs should make it clear that the blog does not represent the view of the company; it’s their own personal view. Also, regarding the company’s position on various issues, an employer should designate spokespeople who will speak on behalf of the company.
Of course, employees have to adhere to any company anti-harassment policy, as well, so they are prohibited from making offensive or inappropriate comments when discussing their employer, superiors, co-workers and/or competitors. The company should also reserve the right to monitor the activity on its electronic communications systems. Including language in a policy that the company provides the right to monitor goes a long way in decreasing expectations for privacy on anything created on the company’s system.
What are pros and cons of using social networking to vet potential employees?
Some employers are conducting Internet searches on potential applicants, and they should be careful. First, it might not actually be that applicant. It might be someone else saying something about the applicant that may or may not be true.
It’s not per se illegal to consider information you find on the Internet about an applicant. You can legally decide not to hire a candidate after reviewing his or her Facebook or MySpace profile, for example. There is no prohibition against using information an applicant places in the public domain. However, all the same anti-discrimination laws apply. The employer needs to be careful of any search results where it finds any protected characteristic of the applicant. By discovering a candidate’s race or potential disability through a social networking site, the employer exposes itself to potential claims of failure to hire based on a protected characteristic under the anti-discrimination laws.
To avoid that, some employers have a nondecision-maker pool the information of potential candidates, do an Internet search and remove all this type of information before giving it to the actual decision-maker. They ‘scrub’ the information so the decision-maker cannot see it, therefore it cannot factor into the decision. That puts the employer in a better defensive position, because it did not consider any protected characteristics when deciding whether to hire the person.
Even then, keep in mind that the information found on social networking sites may not be accurate. Don’t wholeheartedly rely on something learned on a random Web site. There have been instances of people seeking revenge or retaliation for some slight by pretending to be that person on the Internet. There are also cases of college students creating unflattering user accounts pretending to be people they see as competition for a job. An employer should still use its normal vetting process for candidates.
How can you minimize the risk posed by employees with blogs?
The employer’s policy language should state that bloggers need to adhere to any confidentiality or trade secret policy. Employees can express opinions about their terms and conditions of employment, which is protected by the National Labor Relations Act. So if they want to write on a blog about how they don’t like the company’s new vacation policy, that’s fine. But they certainly can’t blog about their companies’ trade secrets or intellectual property. The employer can say the employee disclosed trade secrets in violation of the confidentiality policy. The employer can’t say, ‘You made us look bad by telling everyone why you don’t like our new vacation policy.’
Sheri L. Giger is an attorney with Jackson Lewis LLP. Reach her at (412) 232-1983 or firstname.lastname@example.org.