Many employers are excited about the new opportunities afforded by social media and its treasure-trove of available information on prospects, job applicants, competitors and carriers. As with all opportunities, however, there is risk. Here’s a quick overview of what to watch out for in the world of social media.
What laws apply to social media?
Social media is just another tool that is used in running a business – generally speaking, all the same human resources and employment rules still apply. For example, employees run the risk of creating a hostile work environment by telling off-color or offensive jokes. However, new legal standards surrounding the use of social media in the workplace are rapidly developing. Prudent employers will keep an eye out for developments in this fast-growing area of law.
Federal law
Both the Electronic Communications Protection Act and the Stored Communications Act prohibit unauthorized access to another’s electronic communications. The key concept for employers is “unauthorized access.” For example, if an employee has “friended” an employer on Facebook, the employer is free to view any information on the employee’s Facebook page. An employer who has not been given access to the employee’s Facebook page, however, should not ask a co-worker who has been friended by the employee to give the employer access to Facebook for purposes of checking up on the employee.
The National Labor Relations Act applies to both unionized and nonunionized employers and prohibits interference with employees’ concerted activities (e.g. discussing the terms and conditions of employment with one another).
The National Labor Relations Board has been in the press this year due to its issuing complaints against employers with social media policies that prohibit disparagement of company executives. While commentators have overblown the significance of these complaints, employers should be careful when drafting policies on social media usage to avoid this potential issue.
There has been much written about employees’ First Amendment Rights or rights to privacy, however, rarely, if ever, do these rights apply to private employers. A private employer does not violate the First Amendment by firing an employee for free speech: the speech may be “free” but it is not “protected.” Employees have a general expectation of privacy, but when it comes to the workplace the employer is free to dictate the “privacy” that can be expected by implementing policies addressing this issue.
How do you protect confidential information or trade secrets?
An employee’s poor choice to disclose protected customer information on a social media site can bring not only bad publicity to the employer but the risk that the employer will be sued for a wide range of legal claims, including breach of state and federal information and data- protection laws, defamation, invasion of privacy or conversion. Employers need to be vigilant in making sure that employees realize that information disclosed outside the office, even to friends in casual Internet conversations, can expose the company and employee to liability.
Using social medial in the hiring process
Employers should be careful to think before they Google. There is nothing wrong with researching a job applicant’s history and background. The danger arises with ad hoc hiring processes or Internet research that reveals information that may not be considered in making a hiring decision. At a minimum, employers should conduct such review of applicants across the board and best practice would be to use an outside vendor who will filter out information that cannot be considered.
Use of social media can also have an effect after an employee leaves the company. Boilerplate recommendations through social media sites are easy to request and to provide.
Consider this dilemma: an ex-employee sues for discrimination and the company’s defense is poor performance; however, a co-worker has provided the ex-employee with a positive recommendation on social media sites.
Another example: an ex-employee is fired for a violent outburst at work and a co-worker provides positive recommendations online; the ex-employee is hired at a new company and acts violently toward a co-worker there, causing injuries.
One area that is ripe for conflict with former employees is enforcement of noncompetition and nonsolicitation agreements. Do these agreements define the prohibited contact with customers to include being “linked” with a former client contact on LinkedIn? What if the employee is a “Facebook friend” with a customer?
Enforcing agreements designed to prevent “contact” with a customer after employment is more challenging in today’s environment where the use of social media is widespread.
What can employers do to mitigate the risks?
A good place to start for employers who are concerned about these issues is to have a social media policy that aligns with your employee handbook and other computer/Internet policies. A well-drafted policy will go a long way to limiting exposure to disruptive and expensive litigation. •
Melissa E. Darigan and Michael A. Gamboli are partners at Partridge Snow & Hahn LLP, a business-law firm with offices in Rhode Island and Massachusetts.
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