By Amy Beth Dambeck, Esq.
Facebook, Twitter, LinkedIn, YouTube, personal blog sites, and other social media and networking sites have become a part of everyday life. Not surprisingly, social networking and social media sites have found their way into the workplace. While such sites can be an extremely valuable resource for both employers and employees, their use also gives rise to a variety of new legal issues, concerns and claims for employers to navigate. With the advent of such issues, large and small employers alike are now recognizing the need to develop and implement policies to limit and control their employees’ work-related Internet posts as well as the employers’ own use of social networking sites in making hiring and employment decisions.
While social media can provide new ways to interact and respond to customers, social media activities by employees can create numerous problems for employers. For example, a company can work for years to craft a positive image of itself to the public and its client base, only to have that image instantly tarnished by negative postings from employees. Other risks concern the disclosure of employers’ confidential, proprietary and/or trade secret information. Whether it may concern marketing plans, identity of customers or current projects, inadvertent distribution of such information by employees via social networking may significantly undercut a company’s business plans and strategies –– even if the information is only unwittingly disclosed.
But it is not just the employee’s use of social media that warrants concern. These sites often hold a wealth of information that may be useful in screening job applicants. In fact, many employers now use social networking sites to screen potential hires. However, in so doing, an employer may also learn about information that may later become the basis of a discrimination lawsuit. For example, what if photos or comments posted on a rejected applicant’s Facebook page revealed her membership in a class protected under federal or state laws –– such as her race, age, health condition, political or religious affiliation, or pregnancy status? Whether or not the information putting her in the protected class was a determining factor in a decision not to hire her, the fact that the employer checked the applicant’s Facebook page and was aware of that fact may give rise to an allegation of discrimination.
Recognizing these risks, many employers are wisely implementing policies to directly address the use of social-networking sites so that employees know exactly what is expected of them. There is not a one-size-fits-all policy for employers. Some businesses –– such as those that focus on sales and marketing, may, in fact, depend on social media and networking sites and may even mandate their employees’ use of the sites as an essential part of their job duties. Other businesses may wish to ban the use of social networking and media sites at work altogether.
Although there are inherent risks in the use of social media, employers can minimize such risks by evaluating the issues involved and adopting and implementing policies appropriate to their particular business and circumstances with a minimal investment of time and resources. Development of a social media policy requires an understanding of the specific employer’s needs; the potential rewards and liabilities arising out of the use of social media for that employer; employees’ rights and liability issues; and the realistic social media use of its employees. Once this analysis –– whether formal or informal –– is undertaken, an employer can establish appropriate policies for the use of social media to make decisions about job applicants and employees, to address employees’ use of social media –– both at and away from work (when the activities directly affect the employer) and to ensure that the policies are consistently implemented.
With such policies and procedures in place, employers can maximize the benefits and opportunities presented by social media and networking, while limiting the potential pitfalls that accompany use of the Internet sites.
Amy Beth Dambeck is a member of Stark & Stark’s Employment Group. Ms. Dambeck can be reached at email@example.com