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| Matthew Deffebach |
[Editor's note: This is the second in a four-part series of articles on social media. The first article was “Blocking Employee Use of Social Media? It’s Time to Rethink Why."]
Employers across the country are learning that it is no longer feasible to ignore social media. And many have learned the hard way that they should have implemented a social media policy from day one. Two reasons compel all employers to institute a social media policy; and if your company does not currently have one, it should be a top priority for 2012.
First, outlining the company’s expectations for social media use helps the company reap the benefits of these emerging technologies while avoiding potential pitfalls. Second, a clearly drafted and consistently enforced social media policy helps employers reduce their exposure to potential liability arising from disciplining and/or terminating employees for inappropriate social media use.
Social media continues to develop and change rapidly, precluding bright-line rules. Each company must evaluate its specific needs and concerns involving social media, and craft its policy accordingly. The discussion below provides general guidelines to consider while determining your approach to employee social media use.
Pre-Employment:
Avoid Screening for Protected Information: Federal and state law prohibits employment discrimination based on protected characteristics including religious beliefs, gender and pregnancy status, age, national origin, disabilities and veteran status, among others. Employers who review job applicants’ social media profiles risk learning this protected information inadvertently, which opens the possibility of a discriminatory hiring claim if a company fails to make a job offer and evidence exists that a manager reviewed protected trait information in social media.
For this reason, it is recommended that companies refrain from evaluating job applicants based on their social media use, or establish a safeguard whereby the person screening applicants’ social media use screens out protected information before reporting his or her findings. Employers may want to contract with third parties to screen for this information, and ensure the vendor understands its duties under the Fair Credit Reporting Act and other laws, which apply to companies paid to collect background information.
During Employment:
Enforce Your Social Media Policy: The specifics of your social media policy will depend on your goals and concerns involving social media use. However, the following issues merit consideration in nearly every case:
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Good Judgment: Before delving into specifics, it is a good idea to remind employees that the policy does not purport to address every possible issue involving social media use. Accordingly, employees should always use good judgment and act prudently when using social media.
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Incorporate Other Policies: A social media policy should emphasize that the company’s other policies apply to employee social media use. This should include policies regarding discrimination, harassment, confidentiality, diversity and privacy.
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Business vs. Personal Use: In most cases, it is recommended that companies not broadly prohibit employees from discussing the terms and conditions of their employment online. However, social media policies should delineate the company’s views on both employees’ personal use of social media, and their business use, which would give the impression that the employee is speaking for the company. In addition, it is recommended that companies require express authorization for business use of social media.
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Identify Affiliations: Employees should identify themselves as company employees before posting any information that could be construed as an endorsement of the company or its clients, or criticism of a competitor.
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No Privacy Expectations: The policy should also remind employees that the use of company equipment and Internet activity through it (including personal or business use of social media) may be monitored by the company in the normal course of business.
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Consistently Enforce Your Policy: As with all employment policies, consistent enforcement is key. In addition to sending a clear message to your employees regarding expectations, consistent enforcement will protect companies from claims that it enforced policies in a discriminatory manner.
Post-Employment
Avoid Online Endorsements of Terminated Employees: Many social media sites, such as LinkedIn, allow current and former co-workers to recommend or praise others. If an employee is terminated, these recommendations may contradict the company’s stated reason for firing the employee, and lead to claims that the employee was fired for unlawful reasons.
Incorporate Post-Employment Social Media Use Into Employment Agreements: Many social media sites allow former employees to notify clients or competitors when an employee has changed jobs or started a new company. Non-compete and non-solicitation agreements should address these possibilities. Conversely, the company’s social media policy should emphasize that these agreements apply to social media use.
Matthew Deffebach is a partner in the Labor and Employment Practice in the Houston office Haynes and Boone, LLP; he is also a member of the firm’s new Social Media Practice. He can be reached at [email protected].