Navigating the World of Social Media and the Job

Social media—Facebook, Twitter, LinkedIn, and the latest entry, Google+—are transforming society and, quite naturally, the work environment. How companies respond to these new tools, both in terms of how they handle their employees’ use of the media and how they themselves use them, has become a new challenge to managers at every level of the organization.

Today, more than half of all American adults, and 65% of those who are online, are social media users, according to a new survey from the Pew Research Center. The survey found that 83% of people surveyed in the 18 to 29 age group are social media users, as are 50% to 64% in the 50 to 64 age bracket. Women are the power users, with 89% of those surveyed using social sites. An earlier survey found that blacks are more likely to use Twitter than white Americans.

What does this mean for employers and managers? Plenty, according to those who follow human resource issues and employment law. Notes Caplin & Drysdale attorney James P. Wehner, "Social media blurs the line between public and private conversations and between business and private activity. Only now is the law beginning to address the novel situations the technology creates."

Wehner notes a couple of cases where social media has played a role in getting an employee fired. A pizza waitress in North Carolina lost her job after "grumbling on her Facebook page about a meager tip." An employee of the Philadelphia Eagles professional football team was canned after "criticizing the team for letting a player go to the Broncos."

In hiring decisions, companies have long used outside resources to check employment histories, criminal backgrounds, and the like. Now, some companies are cruising applicants’ social media postings for information. The New York Times reported recently on a start-up firm, Social Intelligence, that, for a fee, scours the Internet for material on potential employees for employers.

All these hiring and firing actions are fraught with pitfalls. What is relevant information about a potential worker or a current employee? How much must a company respect the privacy of its workers or job applicants? What personal information is protected against disclosure? What are the boundaries between freedom of expression and expression of hate speech? Are postings of nude photos grounds for firing or refusal to hire?

Marc Rotenberg, president of the Electronic Privacy Information Center, and an online privacy expert with decades of experience, says that employers are free to gather information relevant to job-related experience. Beyond that, he argues, "employers should not be judging what people in their private lives do away from the workplace."

The federal government is also beginning to take notice of social media and employment policies. Last August, the National Labor Relations Board (NLRB) general counsel, attempting to create some order out of a series of disconnected and confusing cases involving social media, issued guidance for employers on what one law firm has called a "hot-button issue."

Stuart Buttrick and Brian Garrison, attorneys with the firm of Baker & Daniels, remind that "federal labor law gives employees, union or non-union, the right to engage in protected concerted activity." Nine of the 14 cases NLRB General Counsel Lafe Solomon addressed in his guidance memo involved "protected concerted activity."

The NLRB will generally protect social media activity that is pretty raw, even loaded with sarcasm and profanity. Solomon’s memo noted one case where an employee described her boss as a "scumbag" and worse on her Facebook page, which drew "supportive comments from coworkers." That’s protected.

Other federal agencies that have reasons to be concerned about social media and current and potential employees include the Equal Employment Opportunities Commission, the Federal Trade Commission, and the Financial Industry Regulatory Authority (FINRA).

What steps should employers take to avoid entanglements with the emerging social media issues? Attorney Michelle Sherman of Sheppard Mullin has some advice for what she calls "a good starting point." These include:

• Adopt a formal policy on social media, including "Dos" and "Don’ts," while avoiding prohibiting lawful activity such as employees complaining about their pay, benefits, or working conditions.
• Train employees on use of social media, including the need for protecting confidential and proprietary information and protecting the company brand.
• Make sure the company’s document retention policy includes capturing and storing the company’s social media activities "and don’t forget employees conducting business from their smart phones and tablets."
• Make sure the HR department and anyone who makes hiring and firing decisions that they may not use information from social networking sites to "discriminate against anyone based on protected factors under federal or state law."
• Protect your trade secrets, including disclosure on social media sites, including training employees on disclosure.
• Incorporate privacy protection in company business practices, including collecting only reasonable amounts of information and not keeping private data for an "unduly" long period of time.

A final piece of advice, from James Wehner: "Exactly what social media policies are appropriate, however, remains in flux." That observation implies that keeping up on the emerging issues of social media in the workforce is mandatory for savvy managers.

—Kennedy Maize is MANAGING POWER’s executive editor.