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Walking the Social Media Tightrope

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In today’s digital workplace, few issues cause more confusion than social media. Numerous laws are relevant to social media, ranging from Title VII to the Fair Credit Reporting Act to state-specific laws barring requests for applicants’ personal passwords. However, employers can navigate the social media minefield by identifying and addressing the risks.

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Screening of Applicants

When used properly, social media searches can provide a way for employers to learn helpful information they may not otherwise get during a typical hiring process. For example, resume inconsistencies, hobbies and civic involvement may be apparent from online searches.

And any information that allows you to make a better hiring decision may ultimately save your company money.

However, Googling applicants may reveal information that an employer would not (and should not) get during the application process, including age, religion or another protected characteristic. (Think: Happy 63rd birthday, Bob!).

And as I mentioned in a prior article, once you learn protected information, you can’t unlearn it. This issue is particularly relevant since the EEOC has stated that eliminating systemic barriers in recruitment and hiring is one of its current priorities.

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Further, practically speaking, the information you find online may not tell you what you think it’s telling you. A 2013 study by researchers at North Carolina State University found that companies may misunderstand what personality traits are reflected in particular types of social media posts, e.g. that posting about alcohol use online means an applicant is not conscientious, when in fact this study found the two were not correlated.

Lawful Policies for Employees

Once you’ve hired an applicant, your social media worries are over, right? Not exactly.Facebook

The National Labor Relations Board has spent several years defending the right of employees to discuss the terms and conditions of the workplace online. According to the NLRB, many companies violate the Section 7 rights of employees by implementing “overly broad” or “ambiguous” social media policies that could potentially restrict the employees’ ability to act as a group, or to prepare for group action, regarding the terms and conditions of their employment.

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Commonly referred to as “protected concerted activity,” Section 7 applies whether or not an employee belongs to a union – and whether or not the discussion occurs online. Thus any policy that can be interpreted as “chilling” employees’ rights to, for example, complain about a mean boss on Facebook, is fair game to the NLRB.

There is some good news for employers on this front, however. Thus far, the courts appear to be more tolerant than the NLRB of company social media policies and restrictions, and some employers have been successful in using employees’ own social media postings in defense of the company. Nonetheless, this is a rapidly evolving area of the law that savvy employers should continue to monitor.

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Yet employers cannot allow uncertainly to prevent them from addressing workplace issues such as e-harassment or from protecting trade secret information. In fact, some online conduct must result in disciplinary action against an employee.

In recent years one company paid $2.3 million to settle a lawsuit brought by the EEOC alleging sexual harassment and retaliation via text messages. Another court upheld a $1.6 million verdict in favor of an employee with a disability who was harassed by co-workers on a blog outside the workplace. Remember: the medium – whether it be texting, talking or smoke signals – doesn’t matter nearly as much as the conduct itself and whether it’s creating a hostile work environment.

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Potential Solutions

So how should you address these challenges?

First, assess the needs of your company. A one-size-fits-all app-roach to the digital workplace simply isn’t helpful. Instead, take the time to create a comprehensive digital governance program.

For example, does the majority of your workforce use a computer to perform their daily duties, or is the use of mobile devices while driving more of a concern? Do you have a marketing department that is authorized to use social media on behalf of the company? Is most of your workforce connected on Facebook, Twitter or Instagram, and has that become a problem when you promote a former co-worker to a supervisory position?

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The process of evaluating the digital needs of your company should be a group effort to which your business people, your legal counsel and your IT guru all contribute. A team approach is more likely to yield a practical solution – legally, technically and financially.

Create good plans and policies. Once you have made a guidance plan, create a social media policy that lawfully addresses the specific needs of your company. In general, social media policies should give clear guidance and specific examples of acceptable and prohibited conduct. If you ask that employees maintain the confidentiality of your trade secrets, specify what is meant by “trade secrets.” Also, ensure your employees understand that they have no expectation of privacy on company time or company equipment.

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Keep in mind that, according to the NLRB, a social media policy cannot prohibit the posting or publication of disparaging comments or criticism about the company, nor can it mandate courtesy. While courts may or may not ultimately agree with the NLRB’s position, you probably would prefer not to be one of the test cases.

Disseminate (and train for) your policies. Perfect policies cannot save your company from unlawful conduct that occurs when your employees either don’t know the policy exists or don’t understand what it means. For example, if a front-line supervisor receives a complaint of alleged harassment between employees that occurred after hours and outside of the workplace, are you confident she will address it appropriately?

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Create and maintain a paper trail. Especially when it comes to defending a legal action, any and all related documents are critical evidence. And one of the best ways to prove your innocence when it comes to applicant screenings or internal investigations of e-harassment is to provide a contemporaneous record of exactly what actions you took or why you decided to hire one applicant over another.

Take complaints of online harassment seriously. While you have no obligation to affirmatively monitor all activities of your employees after hours and outside of work, employers can and should prohibit illegal conduct online that has created a hostile work environment. Even the NLRB has approved policy language prohibiting “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct.”

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As always, be consistent! For example, Googling only one of nine applicants who happens to look pregnant tends to be a poor idea.

And the Internet is forever. Individuals skilled in computer forensics can recover just about anything. Therefore, if you can’t ask it or do it in person, don’t do so online.

While social media is just one of the challenges faced by employers in the digital era, it is one that can be overcome by good strategy and consistent execution.

Susan Bassford Wilson is an attorney with Constangy, Brooks, Smith & Prophete LLP, which advises and defends employers. She can be reached at [email protected]

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