WEBINAR
When social media throws your company a curve ball

By now, most employers know enough about the potential liabilities and ethical concerns associated with Facebook, Twitter, texting, blogging and other forms of social media to have developed and implemented a social media policy for company employees. But as with any evolving technology or trend, it’s often difficult to see what’s just around the corner, let alone anticipate all the risks. So what happens when social media throws your company a curve ball?

In this one-hour webinar, employment attorneys Charlie Plumb and Natalie Ramsey and intellectual property attorney Ryan Lobato take a closer look at some of the more unique questions, concerns and issues raised by the increased use of social media in the workplace.

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» Download webinar presentation materials

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UPDATE: During the original webinar broadcast on August 17, 2011, our presenters discussed the National Labor Relation Board’s evolving approach to prosecuting employers who discipline employees for their use of social media. The following day, the NLRB’s Acting General Counsel issued a report describing 14 NLRB cases and its findings involving social media policies and actions taken by employers against employees regarding their use of social media. A copy of this NLRB report is available here (PDF), and it provides some insight on how the NLRB may approach similar issues with employers in the future.

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Webinar Q&A

The following are answers to some of the most frequently asked questions during the webinar. Please note that these answers are being provided for information of clients and friends of McAfee & Taft and do not provide legal advice and are not intended to create a lawyer-client relationship. In addition, we are not able to provide answers to fact-specific inquiries. Readers should not act upon the information provided below without seeking professional counsel.
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Q:  As part of the hiring process, you strongly cautioned against using information that was that was available to you, the employer, only through indirect means. Are these ethical concerns or concerns based on current law? 

(In this example, the applicant has set his Facebook settings to “private,” intending to share his information only with his “friends.” You are not his Facebook friend, so you do not have direct access to his page. However, the daughter of a colleague of yours is his Facebook friend, and she offers to share the applicant’s Facebook page content with you.)

A:  The law in this area continues to evolve. However, whether legal or ethical, the appearance of fairness is always an important factor in making a decision about using this type of information. Certainly there are privacy issues at play, but ultimately, if a hiring decision is questioned in a court of law, looking as though you obtained information in a devious manner is never good.

Q: Suppose an employer or its agent sets up a fake account and “friends” a prospective applicant or employee on Facebook. That person then accepts the invitation, giving the employer full access to his Facebook page. Since the person granted access, is the information obtained from that webpage fair game for the employer or its agent?

A:  Setting up a fraudulent Facebook account is a violation of the Facebook terms of use. Furthermore, establishing a fake account to deceptively “friend” prospective applicants or employees for screening purposes may violate state law and risks creating civil liability under EEOC regulations. Depending on any statements the owner of the fake account may make, such conduct may also violate certain state online harassment statutes and create criminal liability .

Q:  If an employer makes a decision not to hire someone based on publicly available information on an applicant’s Facebook page – for example, the applicants posts text or photos indicating intoxication or inappropriate behavior – how do you make note of that during the selection process and what documentation, if any, is needed?

A:  The short answer is yes. If you access publicly available information that influences your hiring decision for a particular candidate, print out the materials that influenced your decision and drop them in a file.

Q:  During the hiring process, can an employer insist (or require) that the interviewee give the employer access to his/her Facebook account as part of a background check? Are there any specific industries or professions where this would be recommended or allowed?

A:  Demanding access to an employee or prospective employee’s Facebook account is bad practice, regardless of industry or area of work.

Q:  What is the best practice when it comes to using social media pages to screen for prospective employees? Is it generally safer to avoid using social media sites as a screening tool due to the fact that people often disclose personal information on their pages – such as age, religion and ethnicity – that you can’t legally ask in an interview?

A:  There is certainly a significant risk with accessing social media in the hiring process. Many people post information on their Facebook pages that should never play a role in a hiring decision, such as date of birth, marital status, religious affiliation, veteran status, etc. If a hiring decision is made after this information has been accessed, employers must always be prepared to articulate the reasoning behind the decision. Use with caution!

Q:  In the case study example about the whistleblowing employee, what action can (or should) be taken by the company if an investigation proves that the employee’s accusation against the company is false?

A:  Whenever an employer is considering taking action against an employee who previously reported wrongdoing on the part of the employer or another employee – i.e., was a “whistleblower” – be prepared to face claims of retaliation. If an employee acted in good faith but was mistaken about their accusations of wrongdoing, the employer should take no action. On the other hand, if the employer can prove the employee knowingly and maliciously made false accusations, the employee is not protected and may be disciplined. Obviously, the difficulty is proving the false accusations were made intentionally.

Q:  How would you advise addressing employees that post on Facebook during work hours that they are “bored and can’t wait to get out of this place”?

A:  Postings like this will not be viewed as particularly damaging or harmful to the employer. Consider addressing this as a performance and productivity issue. Does this employee truly have “down time” that allows them to spend work hours on their Facebook page? If the answer is “no,” then they should be told to start spending their time at work seeing that job tasks and responsibilities are completed. If the answer is “yes,” assign them additional duties.

Q:  Suppose a manager who has “friend” access to an employee’s Facebook page sees photos of that employee exercising poor judgment or engaging in inappropriate behavior. Can the employer use that information – photos and/or text – to discipline the employee?

A:  An employer can take disciplinary action if the employer can identify and articulate how these photos have adversely impacted the business. Have customers told us it affects their willingness to work with us or that employee? Have the photos interfered with co-employees and their work with the employee? Can the employer demonstrate a tangible impact on the company’s reputation – is the employee who posted the photos identified with the employer? Cases like this always have to be addressed on a case-by-case basis and are very fact specific.

Q:  Can an employer use unsolicited information obtained from social media sites to take action against another employee? For example: Susan, who is a Facebook “friend” of her co-worker John, brings in a printed copy of his Facebook posts and photos showing him having fun on vacation while he was supposed to be on employer-approved sick leave.

A:  Particularly because it was unsolicited, this information justifies the employer investigating a potential violation of policy as well as dishonesty on the part of the employee in dealing with the employer. Ultimately, the information may be used as partial justification for disciplining the employee.

Q:  Should a manager or supervisor – HR or otherwise – be Facebook friends with employees ?

A:  Managers should always be trained on the risks and responsibilities of using Facebook or social media accounts, particularly when they have asked co-workers and/or subordinates to be “friends.” All employees should understand that their responsibility to report harassment, discrimination and violations of company policy extends beyond the workplace and puts them in a position to have to report their “friends.” All employees should exercise caution and discretion when using social media.

Q:  What recourse does an employer have if either an ex-employee or an employee with a workers’ compensation lawsuit uses social media to badmouth the company?

A:  It would depend on what the badmouthing includes. Generally, short of extremely damaging and unlawful statements, there may be very little an employer can do.

Q:  If my company does not provide direct access to social media sites using the company network or other resources, do we still need to have a social media policy?

A:  Yes. Even if an employer does not provide access to social media through the workplace, it should adopt a social media policy. Remember many of the issues that arise for employers – harassment, disclosure of confidential information, complaints about the employer, etc. – arise after work hours and offsite.

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