Social networks such as MySpace, Facebook, LinkedIn, and Twitter are rapidly becoming the latest form of communications in network-centric social communications. As social networking sites continue to grow in popularity and use, many employers are facing the reality of how new communication technologies can affect them.
Accessing the wealth of information available on social networking sites is becoming very common for employers, particularly when making hiring decisions. Unfortunately, using social networking technologies to screen applicants may expose employers to potential legal risks. This is because these social networking sites frequently contain personal information about job applicants that employers would not be permitted to ask about during any job interview – things such as the applicant’s age, sexual orientation, political beliefs, religious affiliations and/or whether the applicant is disabled. Therefore, accessing these social networking pages for employment purposes can result in violations of various anti-discrimination statutes, privacy laws, state “off-duty” conduct statutes, federal and state Fair Credit Reporting Acts, and the National Labor Relations Act.
In addition to use of social networking by employers when making hiring decisions, those same employers must consider how they will address the use of such technologies by their employees, both inside and outside the workplace. The lines between personal and professional lives have blurred, opening new avenues for potential for employee misbehavior. Companies are confronting such situations as the bashing of the employer or supervisors on the Internet, online breaches of confidentiality and loyalty, defamation, cyber-stalking, cyber-harassment, dissemination of trade secret information, protected concerted and off duty activity, union organizing, and overall lost productivity.
Despite a recent survey which indicated that 51% of employees accessed social networks at least once per day at work, employers have been slow to adopt and disseminate social networking policies. Employees are often left to guess at what kind of conduct is permissible. Without an effective social networking policy in place, employers may be opening themselves up to liability on a whole host of issues.
Since there is no such thing as a “one size fits all” social networking policy for employers, several factors should be considered by any employer considering drafting a social networking policy:
1. How far should the social networking policy reach? Social networking presents two concerns for employers – how employees are spending their time at work, and how employees are portraying the company online when they are not at work.
2. Should social networking be permitted at work at all?
3. If the employer prohibits social networking in the workplace, how will the rule be enforced?
4. If the employer permits employees to social network at work, should social networking be limited to work related concerns only?
5. Should employees be required to identify with the employer’s business when networking online?
6. How should appropriate business behavior be defined?
7. How will social networking intersect with the employer’s broader harassment, technology and confidentiality policies? Employers should emphasize that company policies, such as those related to discrimination and harassment, apply when employees use social media.
In addition to considering these above-mentioned factors, there are other prohibitions which employers should incorporate into any social networking policy. For example, employers should prohibit employees from posting on any social networking site:
Trademarked or trade secret material;
Material that is obscene, vulgar, defamatory, discriminatory, harassing, abusive, etc.; and
Postings that reflect negatively on the employer.
Employers considering implementing a social networking policy or any other employment policy and procedure should always consult with their employment lawyers. If you require any assistance with developing and/or revising any of your policies and procedures, please contact the Masud Labor Law Group, 4449 Fashion Square Boulevard, Suite 1, Saginaw, MI, 48603; (989) 792-4499; www.masudlaborlaw.com
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