The term “social media” refers to websites and networks where users have the opportunity to share with a few people or a few million people photos, videos, opinions, reviews and reports concerning their social life and work life. Blogs, Wikipedia, YouTube, Facebook, Twitter, and a number of other websites, you have never heard of but your employees use regularly, are all examples of social media.
Some employers encourage their employees to discuss the business on social media based on the belief that employees are ambassadors for the business and can enhance the reputation of the employer in the public arena and even find useful ideas for their work. However, encouraging your employees to race around the World Wide Web discussing your business and its management is obviously risky. On the other hand, prohibiting all social media communications is not realistic and probably too difficult to enforce. Additionally, in a number of cases involving Facebook, the National Labor Relations Board, which governs union elections and related employee activity, found it unlawful to prohibit employees from using social media to discuss their interest in union organizing.
How should a company respond to social media? To help determine whether a job applicant should be hired, an employer can review the applicant’s Facebook page, tweeting, etc. I’ll leave it to each of you to decide whether analyzing individual social media should be part of your hiring procedure. To require passwords or codes from job applicants to obtain access to social media is currently only illegal in Maryland. But, Federal legislation has been introduced in Congress to prohibit employers from requiring a user name, password or other access to online contact. Even if it is lawful, whether this kind of investigation of a prospective employee is a good idea and produces reliable information is questionable. Similarly, employers can monitor the social media sites of current employees. Monitoring social media sites may be reasonable to protect the company from disparagement and other information that is damaging to the business. However, an employer must be judicious in its use of any social media postings that are personal. If the blog does not identify or at least obviously refer to the employer, taking an adverse job action against an employee is in most instances ill-advised. There is significant litigation by employees who claim their right to privacy was violated when they were fired for “personal” information or photographs on the internet.
I believe that establishing at least a few social media guidelines is prudent. I think these guidelines should be consistent with any telephone or computer policies that are already in place. Social media guidelines should cover revealing confidential and proprietary information; offensive comments about fellow-employees, clients and competitors; violation of copyrights and similar legal protections; and a warning that once it is on the internet, it is there forever and may be impossible to retract.
Generally, social media and the employment relationship is important and should not be ignored. Nevertheless, overreacting is easy. At least for now, a clear restrained social media policy is best.
For further information regarding these matters, please contact Mr. Boyer at 248.740.5666 or via email.