The case for every employer to develop and implement a robust social media policy is straightforward. The proper use of websites such as Facebook, LinkedIn, and Google+ can aid companies' hiring decisions. However, overreliance on such media during hiring can expose a company to a disparate impact claim of race discrimination. In fact, a Pew Research Center survey estimates that 85 percent of its users are Caucasian, as compared to only 2 percent African-American and 4 percent Hispanic.
Likewise, the use of social media can aid in internal investigations of employee misconduct. At the same time, an employer's ham-handed use of this medium can lead to costly litigation. See, e.g., Karl Knauz Motors, Inc., Case No. 13-CA-46452, in which the National Labor Relations Board alleges that a car dealer unlawfully fired a salesperson for Facebook comments critical of the employer. Additionally, Pietrylo v. Hillstone Rest. Grp., Docket No. 2:06-cv-05754 (D.N.J. 2008) denied an employer summary judgment on state- and federal-stored communications claims where the employer demanded an employee's user name and password to a MySpace page containing allegedly inappropriate references to coworkers, supervisors and the workplace.
Further, while there is no denying the marketing reach and appeal of social media for a host of goods and services, even a low-level employee's unauthorized use of such media to promote their employer can lead to a government enforcement action. Notably, in "Guides Concerning the Use of Endorsements and Testimonials in Advertising," 16 CFR § 255, the FTC has asserted that employers will be held responsible for "endorsement" statements made by their employees regarding the employer's products and services, even if those statements are made without the employer's permission or knowledge, where those statements are either: (1) false, (2) unsubstantiated or (3) the employee fails to disclose a material connection between herself and their endorsement. Id. at § 255.1(d).
What Your Social Media Policy Should Include
To begin, references to social media should be included in your company's pre-existing harassment and discrimination, ethics, confidentiality, electronic equipment/Internet usage, marketing, and hiring policies and procedures.
Additionally, companies should clearly address employees' privacy expectations when the employer's equipment or software/programs are used. Coworker "friending" should be limited or prohibited between supervisors and subordinates, and all employees should be allowed to reject a friend request from a coworker without repercussion. Employees should be instructed to refrain from using the company's logo, trademark or proprietary graphics, as well as photos of the company's premises or product, on social networking sites without prior approval. Company endorsements should be closely regulated, if not discouraged altogether; and train HR personnel to screen applicants (and check up on employees) in a uniform and consistent manner without accessing password-protected or invitation-only sites.
Last, actively monitor the content of your company's social media site, and consider monitoring all references to your company on the web, and/or outsource that task to a reputable third-party while coordinating internal responses to unflattering discoveries through your in-house or outside counsel.
