The use of social media - by both employees and employers - has
become prevalent in the workplace. This presents both opportunities
and challenges for employers, who are not always fully aware of the
legal and business implications of the use (and misuse) of social
media.
What are social media?
"Social media" are any type of Internet-based media created
through social interaction, where individuals primarily produce
(rather than consume) the content. Social media relevant to the
workplace can be broken down into four subgroups:
- Social networking Web sites: These Web sites
host Internet communities that allow individuals to interact with
each other in various ways, such as connecting with friends and
family (Facebook), sharing music (MySpace), and building a
professional network (LinkedIn).
- Blogs ("Web logs"): These are usually
individual online journals or commentaries that allow for social
interaction through a public "comment" feature. Some businesses
also sponsor or create content for corporate blogs (for news
sharing, marketing or public relations purposes). Twitter is
considered a "micro-blog."
- Online multi-user virtual worlds: These are
online gaming communities where individuals interact and
communicate via their customizable online characters (called
"avatars"), which often appear to be three-dimensional. Popular
virtual worlds include Second Life (interaction through a virtual
economy) and World of Warcraft (interaction through virtual
gaming). These virtual worlds generally include a chat or instant
messaging feature through which participants can
communicate.1
- Video-sharing Web sites: These are online
communities where individuals upload, view and comment on videos.
YouTube is the most widely-known of such sites.
The content of these media is generally created for individuals,
by individuals, so why should employers care? Because each medium
is ripe with opportunity and risk.
Why should employers care about social
media?
In a 2009 study by Deloitte LLP on social media and the
workplace, 74 percent of the 2,008 employed adults surveyed
responded that they believe it is easy to damage a brand's
reputation via social media.2 Alarmingly, 61 percent of
the employed adults responded that even if their employer is
monitoring their social networking profiles or activities, they
won't change what they are doing online, and 53 percent responded
that their personal social networking pages are none of their
employer's business. Contrast this with 60 percent of the 500
business executives surveyed, who believed that employers have a
right to know how employees portray themselves and their
organizations online.
Another 2009 study confirms that employers are acting on this
perceived "right to know." In a study by Russell Herder and Ethos
Business Law on social media and the workplace, 36 percent of the
438 management, marketing and human resources executives surveyed
use social media to see what current employees may be sharing
online, and 25 percent use social media to check the background of
prospective employees.3
Despite these social media use statistics, employers have not
adopted a uniform approach to addressing social networking in the
workplace. In a 2009 study on social media and the workplace by
Robert Half Technology, 54 percent of the 1,400 chief information
officers surveyed completely prohibit social networking sites in
the workplace, while 19 percent permit social networking sites in
the workplace for business purposes only.4 Of the 438
management, marketing and human resources executives surveyed in
the Russell Herder/Ethos Business Law study, 40 percent block
employee access to social media, while 26 percent encourage
employees to use social media to further business objectives. A
stunning 69 percent of these 438 respondents indicated that their
company does not have a written social media policy.
What are the major issues for consideration regarding
social media in the workplace?
Social media now permeate the entire life cycle of employment:
during pre-employment inquiries, throughout the period of
employment, and after separation from employment. Employers must
consider the use and misuse of social media at each stage.
Pre-employment: Whether to search for applicant information
in social media
In this Information Age, employers can now access more
information about applicants by using social media than is
typically available by using an application form or résumé
drop.5 For example, an employer can follow an applicant
on Twitter, search the applicant's public Facebook or LinkedIn
profile, or browse the applicant's personal blog. Applicants may
reveal more information about themselves through text and photos in
social media than they would in an interview, and, in making a
hiring decision, employers can use information relating to an
applicant's illegal drug use, poor work ethic, poor
writing/communications skills, feelings about previous employers,
and racist or discriminatory tendencies.6 Employers can
clearly benefit from this lawful use of information
obtained from social media in the screening process.
However, employers can face lawsuits for unlawful use
of the information obtained from social media. Employers may face
liability under federal and state law (e.g., Title VII, Americans
with Disabilities Act, Age Discrimination in Employment Act, state
anti-discrimination laws) for using any information learned from
social media about an applicant's protected class status (e.g.
race, age, gender, national origin, military status, disability,
religion, marital status, and in some states, political affiliation
or sexual orientation) in a hiring decision. The employer's search
of an applicant using social media may be revealed in later
discovery, and it may be hard for the employer to prove in later
litigation that it didn't use the information obtained in
a social media search when making its employment decision.
In addition, employers may face liability under certain state
privacy laws for basing employment decisions on an applicant's
lawful, off-duty recreational activities (e.g.,
smoking).7
Employers should consider whether the benefits of using social
media to screen applicants outweigh the risks. If an employer wants
to supplement traditional hiring practices (application form,
résumé, writing sample and/or interview) with a social media
search, the following is a suggested approach for creating a global
policy for using social media in hiring decisions:
- Screen applicants in a uniform manner. Create a list of the
social media sites that will be searched for each
applicant.8 Create a list of the lawful information
about applicants desired from every social media search. After
these search criteria are compiled, screen all applicants
using that lawful criteria. If employers do not have the time,
resources or inclination to screen all applicants using social
media, they can choose a non-discriminatory subset of applicants to
screen (i.e., choose to screen applicants for certain positions,
levels or grades of employment).
- Have a neutral party (e.g., an employee in a
non-decision-making role) conduct the social media search,
filtering out any protected class information about the applicant
and reporting only on information which may lawfully be considered
in making the hiring decision.
- Don't "friend" applicants in order to gain access to their
non-public social networking profiles. The applicant may feel that
he or she must accept the request in order to get the job offer,
and such a request may make it harder for the employer to prove
that it didn't use the information discovered when making its
employment decision.
- As always, employers must be able to point to a legitimate,
non-discriminatory reason for the hiring decision, with
documentation to support the decision. Employers who are
considering making an employment decision based on information
found in social media should always consult with employment counsel
prior to doing so.
During employment: Whether to allow or encourage employees
to use social media
There are many benefits to allowing or encouraging employees to
use social media in the workplace. The use of social media in the
workplace can create a more collegial atmosphere through less
formal communications between co-workers, and learning personal
information about co-workers through social media can lead to
shared experiences and stronger working relationships. Social media
can also be used for business development purposes. In addition,
blogs and social networking sites can provide a great opportunity
for customers to discuss the company's products or services, and
for employers to monitor and change their business practices,
services, and products accordingly.
On the other hand, employers trying to foster camaraderie in the
workplace through social media can instead foster awkward and
potentially harassing situations when use of such sites turns
inappropriate. When a supervisor wants to be a subordinate's
"friend" on a social networking site, it can create an awkward
interaction between the supervisor and subordinate. If the
subordinate accepts the invitation, the supervisor can see the
subordinate's other friends, photos, "wall" postings, social
activities, and other personal information (and vice versa), unless
privacy settings are adopted. If the subordinate doesn't accept the
invitation, he or she may be concerned that his or her employment
opportunities may suffer or that the supervisor will be offended.
Either way, the supervisor/subordinate dynamic is changed.
In more extreme cases, misuse of such sites can give rise to
claims of co-worker or supervisor sexual harassment, or even
cyber-stalking. Co-workers or supervisors can "poke" other
employees or subordinates on Facebook. Co-workers or subordinates
can harass the avatars of other employees or subordinates in Second
Life. Derogatory or harassing comments on social media sites
directed at fellow employees could create a hostile work
environment.
The most obvious hazard to allowing or encouraging the
use of social media in the workplace is that employees can spend so
much time using social media during working hours that efficiency
and productivity fall,9 but the biggest risk of
social media in the workplace is the external employee
misuse of such media. For example, employees can:
- abuse their access to their employer's confidential or inside
information by making unauthorized disclosures of company
information (confidential, proprietary and/or trade secret) via
social media, especially anonymously;10
- misuse social media in a way that leads to corporate
embarrassment and public relations issues;
- comment or post photos on social media sites that disparage the
employer or its customers, thus negatively impacting the employer's
brand or image; and
- blog or comment via social media regarding confidential
information about mass layoffs, confidential settlement or
severance agreements, and the like.
A few recent examples demonstrate this risk:
- The Kansas City Chiefs football team suspended and then
released its record-breaking running back Larry Johnson after he
made Twitter postings insulting fans, questioning the head coach's
experience, and using a gay slur. In the interim between the
Twitter posts and the release, the gay-advocacy group GLAAD called
for an apology from and punishment of Johnson for the slur, and
Chiefs fans started an online petition demanding his termination
from employment.
- Virgin Atlantic terminated 13 cabin crew members after they
posted disparaging comments about the airline and its customers on
Facebook. Although these employees did not have traditional "desk
jobs," and therefore were not online during working hours, they
still managed to use social media in a way that disparaged the
employer.
- A Domino's Pizza employee in North Carolina made a video of
himself (with another employee narrating) preparing sandwiches for
delivery in a way that violated health code standards and generally
disgusted viewers. The video went viral on YouTube, and Domino's
was dealt an immediate and urgent public relations crisis.
- Three teenage employees of Kentucky Fried Chicken were fired
after turning a restaurant sink into their own personal hot tub.
The employees posted photos of themselves in the sink, wearing only
undergarments, on MySpace, and the comments on the pictures and the
name of photo album made it clear that the stunt took place at
Kentucky Fried Chicken.
- A Delta flight attendant was suspended and eventually
terminated in 2004 for posting pictures of herself in uniform and
inside a Delta plane on her anonymous personal blog, originally
called "Diary of a Flight Attendant," where she referred to herself
as "Queen of Sky." She later sued the airline for sex
discrimination, alleging that male flight attendants posted similar
pictures of themselves in uniform on match.com and were not
subjected to discipline.
Examples such as these support the Deloitte LLP study, cited
above, in which 74 percent of the 2,008 employed adults surveyed
responded that they believe it is easy to damage a brand's
reputation via social media.
To address these risks, employers must first consider the proper
level of encouragement (versus an outright ban) of social media use
in the workplace. This will depend on the employer's industry,
culture and workforce. For some professions, industries or
positions, the use of social media might be appropriate or
beneficial for business development purposes (i.e., for sales
people to make and maintain contacts). For others, an outright ban
may be appropriate for a workforce that simply has no business
reason to access or use social media while at work or while using
the company networks, facilities or equipment. However, such a ban
could alienate employees, especially younger employees who grew up
using social media, and could make all employees wary of the
employer's "Big Brother" appearances.
Employers can combat some risks of social networking in the
workplace by implementing and enforcing information technology,
code of conduct, harassment, and confidentiality policies that
specifically reference social media. At a minimum, employers must
insert broad language encompassing social networking sites, blogs,
virtual worlds and video-sharing Web sites into current IT, code of
conduct, harassment and confidentiality policies.11
Employers should consider adding the following features, if
appropriate, to create a comprehensive social media policy:
- A clear statement that misuse of social media can be grounds
for discipline, up to and including termination.
- A prohibition on disclosure of the employer's confidential,
trade secret or proprietary information.
- A request that employees keep company logos or trademarks off
their blogs and personal Web pages or profiles (including photos of
employees in uniform) and not mention the company in posts, unless
for business purposes.12
- An instruction that employees not post or blog during business
hours, unless for business purposes.
- A prohibition on using company e-mail addresses to register for
social media sites.
- A prohibition on posting false information about the company or
its employees, customers or affiliates.
- A general instruction that employees use good judgment and take
personal and professional responsibility for what they
publish.
- The name of someone within the organization for employees to
contact if they have questions about any social media use or
policy.
- A statement that all employees with personal blogs that
identify their employer must include a disclaimer that the views
expressed on the blog are those of the individual and not the
employer.
- An instruction on proper topics for discussion that add value,
if encouraging employee use of social media for marketing or
business development purposes.
All supervisors and human resources professionals must be
trained on the appropriate use of social media and how to
consistently enforce the employer's social media policies. Any
policy addressing social media must use broad language and be
updated frequently, because social media will develop and change
over time. A general culture of professional responsibility will go
a long way towards ensuring that employees do not misuse social
media.
Post-employment: Whether to "recommend" a former employee
using social media
Social media even creep into the post-employment relationship
between the employer and the former employee. Supervisors and
co-workers are increasingly asked to "recommend" former employees
on LinkedIn after separation from employment. This "recommend"
feature allows people in a professional network to write positive
professional reviews about other people in their network. Such a
recommendation, as well as the recommender's name and company
affiliation, will be visible on the former employee's LinkedIn
page.
A positive recommendation on a person's LinkedIn page is the
same as an employment reference, and should uniformly be treated as
such. Supervisors may unintentionally run afoul of the employer's
post-employment reference policy by posting a recommendation of a
former employee on LinkedIn. An individual supervisor's
recommendation on LinkedIn could conflict with the official
position taken by the employer regarding the employee's
performance; and a positive review of a former employee on LinkedIn
could harm the employer in an employment discrimination litigation
where the employer has said that the termination was
performance-related, the former employee has alleged that it was
because of his or her protected class status, and the LinkedIn
recommendation indicates that the former employee's performance was
stellar.
In order to avoid such situations, the employer's general
post-employment reference policy must specifically cover
recommendations via social media. For example, if the employer's
post-employment reference policy is to only confirm a former
employee's dates of employment and position, this stance should
translate to social media as well - meaning, in most cases, that a
supervisor will not be able to recommend a former employee on
LinkedIn. Employers could also consider adding to their
post-employment reference policy a prohibition on managers from
"recommending" or commenting on the job performance of former
employees via social media without prior specific authorization
from the human resources department. If a post-employment reference
policy regarding social media is adopted, employers should
communicate such policy to current employees via an employee
handbook or similar notification, and should consider notifying
separated employees of such a policy in release agreements upon
separation from employment.
Conclusion
Employers can no longer ignore the risks of social media in the
workplace. Employers must be cautious in addressing these emerging
workplace issues, even though employment-related litigation over
social media is in its infancy. First, employers must understand
the myriad issues surrounding social media in the workplace in
order to strike the appropriate balance in the eyes of their
employees and the law. Then, employers must craft appropriate
policies and procedures regarding social media that are consistent
with their industry and firm culture, and apply such policies in a
consistent and non-discriminatory way.
Notes
1. Although virtual worlds may not be familiar
to many employers, these communities are popular among certain
demographics, including men and those of Generations X and Y.
Co-workers can and do interact with each other both in reality and
in these virtual worlds, and the violent and/or sexual undertones
(or overtones) associated with these virtual worlds make these
communities ripe for sexual harassment, workplace violence or other
misconduct among employees.
2. Deloitte LLP, Ethics and Workplace Survey,
Social Networking and Reputational Risk in the Workplace (May 28,
2009) available at
www.deloitte.com/assets/Dcom-UnitedStates/Local
percent20Assets/Documents/us_2009_ethics_workplace_survey_220509.pdf.
This survey consisted of: (1) a national probability telephone
survey of 2,008 employed adults (1,000 men and 1,008 women), who
were 18 years or older and living in private households in the
continental United States, and (2) an online survey (invitation
only) of 500 business executives.
3. Russell Herder & Ethos Business Law,
Social Media, Embracing the Opportunities, Averting the Risks (July
2009) available at www.russellherder.com/SocialMediaResearch/.
This survey consisted of an online survey of 438 randomly selected
management, marketing and HR executives from U.S. companies.
4. Robert Half Technology, Whistle - But Don't
Tweet - While You Work, (Oct. 6, 2009) available at http://rht.mediaroom.com/index.php?s=131&item=790.
This survey consisted of a telephone survey of 1,400 CIOs from U.S.
companies with 100 or more employees.
5. This is especially true in light of
Facebook's recent changes to its privacy settings. On Dec. 9, 2009,
Facebook changed the default privacy settings of its more than 350
million users. Now, certain information about each Facebook user
(name, profile picture, current city, gender, networks, list of
friends and list of "Pages" that the user is a "fan" of) is
publicly available to all other Facebook users. The user can alter
or hide some of this information, but only through obscure privacy
settings. Facebook also unwittingly set some users' photo albums to
public, although this setting can be altered (but unless the user
takes steps to adjust the setting, the albums will remain public).
See Facebook, A Guide to Privacy on Facebook, www.facebook.com/privacy/explanation.php?ref=pf;
Facebook, Privacy Policy, www.facebook.com/policy.php.
6. Some of these practices also carry legal
risk. For example, it may not be possible to conclude from perusing
an individual's Web posting that he or she is currently
using an illegal drug, and making an employment decision based on
assumption of such use may also constitute discrimination on the
basis of a perceived disability.
7. See, e.g., N.Y. Labor Law §201-d
(2008).
8. This list will likely include the most
popular social networking sites (Facebook, MySpace and LinkedIn),
any widely used blogs (Twitter), and a Google search for the
applicant's name to reveal any other personal blogs. This list must
be revised over time, as the use of currently popular social media
sites declines and new ones become more widely used.
9. A recent Associated Chambers of Commerce
and Industry of India survey of 4,000 employees found that the
average employee spends one hour per day at work on social media
sites. See The Associated Chambers of Commerce and
Industry in India, Corp. Employees Productivity Is Killed By
12.5 percent In Surfing Sites, (Dec. 20, 2009) available
at www.assocham.org/prels/shownews.php?id=2265.
10. Employers should also be mindful of the
new Federal Trade Commission Endorsement Guides, effective Dec. 1,
2009. These guides are aimed at professional bloggers - those who
blog for pay or free items. The guides address the FTC's concerns
about deceptive practices through consumer-generated media and
endorsements, and were drafted in such a way that employees who use
social media in ways that promote their employer are bound to
follow. Under the guides, any material connection between endorser
(employee) and seller (employer) of a product or service must be
fully disclosed. The endorser (employee) and seller (employer) each
face potential fines of $11,000 per violation. See 16
C.F.R. § 255.5 (2009).
11. Post-employment, employers should also
incorporate language specifically referencing social media into the
confidentiality provisions of their separation and settlement
agreements. Employers should also consider adding a statement to
the employee handbook or separation letter stating: "On or before
your separation date, you agree to remove from your personal social
media any designation or indication that you are a current
employee of the Company."
12. In a December 2009 opinion letter from the
National Labor Relations Board Office of the General Counsel, the
OGC's office opined on whether a particular employer's social media
policy "could possibly be construed to chill Section 7 protected
activity." In this opinion, the employer in question had a social
media policy that prohibited "disparagement of company's or
competitors' products, services, executive leadership, employees,
strategy and business prospects," among other prohibitions. The
employees who routinely used Yahoo! Groups to discuss an ongoing
union organizing campaign were unsure whether this activity
violated the social media policy, and felt that the social media
policy infringed upon their freedom of expression. The OGC found
that, taken in context with the rest of the social media policy -
which prohibited, according to the OGC, other "plainly egregious
conduct" - the prohibition in question could not reasonably be
construed to apply to Section 7 activity: "Taken as a whole … the
Policy contains sufficient examples and explanation of purpose for
a reasonable employee to understand that it prohibits the online
sharing of confidential intellectual property or egregiously
inappropriate language and not Section 7 protected complaints about
the Employer or working conditions." See 2009 NLRB GCM
LEXIS 67 *10 (Dec. 4, 2009).
The Author
Renee M. Jackson is an employment
attorney at Nixon Peabody LLP. She counsels domestic and
international employers on the employment law issues they face in
the United States, including restrictive covenants, wage and hour,
workplace policies, discrimination, employee discipline, hiring and
firing, and the use of social media in the workplace. She defends
employers at the state court, federal court and agency
level.