Social Media in the Workplace

What is considered acceptable use of social media in the modern workplace? How can what you post on social media both in and out of the office be used against you?

Although in many cases U.S. laws and regulations have not kept pace with all the latest developments, legislators and employment specialists have become increasingly aware of the issues. Facebook has over one billion users, with Twitter boasting around 500 million – and LinkedIn around half that.

Understandably, many employers were reported as having noted this tendency with some degree of alarm, voicing fears such as reduced productivity, adverse publicity and a possible trend in work-related claims and liability. Some have wondered about their rights to ban social media usage in the workplace – yet these same employers have seen their levels of businesses grow in many cases due to social media’s innate ability to market products and services to new customers. Companies also hire bloggers, endorsers or community managers to take advantage of the phenomenon.

In addition, employee morale is usually higher with access. What is clear, however, is that social media policies are just as important an area as any other (such as vacations, special leave and anti-discrimination) in contracts of employment and the general relationships between employers and employees.

As social media developed, some government agencies began issuing guidance. While some of this has been based on common sense and an intuitive approach, other examples have been less so. Specifically, some NLRB (National Labor Relations Board) pronouncements on the subject have been viewed as self-contradictory and confusing. The NLRB has received most of its press attention for supporting the employee right of engaging in concerted activities. Here, one key test is whether any one employer policy would reasonably have the effect of distressing employees; such clauses are deemed invalid in employment contracts. The Equal Employment Opportunities Commission (EEC) has also taken an interest in the question.

Disparagement of common interests is a no-go area – criticizing an employer on social media could be used as grounds for dismissal. However, such dismissals can have surprising effects, one example being the young waiter who worked for a well-known restaurant and who was sacked for complaining about his supervisor. The disgruntled employee took to posting a short video on YouTube, which then received 500,000 YouTube hits and thousands of Twitter followers – a testament to the strength of human ingenuity and curiosity.

Some court actions have invalidated social media policies including one where a car sales representative had been sacked for criticizing the food served at a special event held by his employers for dealership customers. However, the U.S. Supreme Court has not yet ruled on the issue. Several states have passed laws that have prohibited employers from requesting employees to disclose passwords for their social media accounts – in effect, codifying the idea of respecting individual privacy and social media usage.

The Social Networking Online Protection Act of 2012 was introduced in the House of Representatives. In October 2014, the U.S. Chamber Institute for Legal Reform released a study exposing liability and business risks while also reporting considerable variation between different states. There were marked differences between Arkansas and Illinois or Nevada, for instance.

In addition, legal precedent has left some contentious judgments around hiring. In Gaskell v. Univ. of Kentucky, a hiring employer-defendant had learned about the applicant plaintiff’s religious beliefs through screening applicants online. It was held that in conjunction with other supporting evidence, the knowledge gleaned was sufficient to preclude summary judgment dismissal of her claim for discrimination and the organization’s failure to hire her.

Conversely, in a similar claim between Nieman and Grange Mutual Ins. Co., the plaintiff claimed discrimination against him due to his having sued a previous employer, a fact that the prospective new employer had gleaned while researching job candidates online. Although the court did not reject the plaintiff’s grounds as invalid, it judged that there was insufficient factual evidence to support the claim.

Therefore, policies need to be well thought through; employers need to be careful with the words and the context.

Current social media usage policy recommendations are based on the acronym RESPECT:

Responsibility for content posted

A news agency employee was fired because he continued to tweet information that the Police Department had specifically asked him not to tweet after the Boston Marathon bombing.

Etiquette

Harassment, intimidation and bullying are not acceptable.

Selectivity

Company policy should be agreed in terms of deciding who should respond to social media, when and how.

Privacy

This involves not invading private employee information or medical records.

Efficiency

This area centers on agreeing on reasonable limits in order to maintain productivity and performance.

Confidentiality

Restricting the disclosure of non-public information such as plans, pricing and privileged information that could have a bearing on stock value.

Transparency

Maintaining credibility with the outside world, through honesty in posts.

Resources:

http://www.bna.com/social-media-policies-in-the-workplace-its-all-about-respect/

http://www.americanbar.org/publications/international_law_news/2012/fall/social_media_workplace_employer_protections_versus_employee_privacy.html

https://www.reedsmith.com/files/Publication/356cff8f-0d3a-4072-9209-178049af8039/Presentation/PublicationAttachment/c9001845-1061-42c4-ac85-2901b63c9f3c/Perils%20and%20Pitfalls%20Social%20Media%20Law%20and%20the%20Workplace.pdf

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