Labor: Social media's impact on the workplace

How to handle issues from employee productivity to trade secret protection

The use of social media is growing exponentially and few workplaces are immune from the impact of its unrelenting attraction. Consider these numbers: LinkedIn, known for business networking and marketing, claims to have some 175 million users and 2 million companies with LinkedIn pages. Facebook, mostly a personal medium, states that there are 140.3 billion “friend” connections among its 1 billion users. Still, some companies are slow to recognize and manage social media’s impacts.

 

Employee productivity

Social media is eclipsing more traditional drains on employee productivity, such as excessive non-business hallway talk and telephone use. Employer policies that prohibit or discourage social media use for non-business purposes on employer-owned computers and mobile devices are often impractical to enforce. Software products exist that can block employee access to specific websites from company computers. Some employers do want their employees to be able to have some personal use access during breaks, which could be managed by software that tracks amount of time on non-business websites. While employers can discipline employees for personal use of company computers during “company time” (i.e., time in excess of reasonable work breaks), the discipline decision could be complicated if the content of the employee’s social media messages is arguably concerted employee communication about workplace conditions protected by the National Labor Relations Act (NLRA).

 

NLRB efforts to manage employers

National Labor Relations Board (NLRB) counsel has issued three reports on whether employer social media policies and employer adverse action are lawful or violate the NLRA. They can be found here. In essence, the NLRB will allow employers to implement policies that prohibit harassment, bullying, discrimination and retaliation; forbid “inappropriate postings” as long as interpretive examples are included such as threats of violence or discriminatory comments; and instructing employees not to disclose trade secrets.

 

Too much of a good thing

Social media as a means of gathering information on job applicants and employees is on the rise. Certainly an employer would want early warning of trade secret theft, intended unfair competition or other serious misconduct, but that needs to be balanced against the legal risks of having access to information, such as ethnicity, religion, disability, pregnancy and distasteful but lawful off-duty personal activities that the employer cannot lawfully use in making a hiring or other employment decisions. If companies use social media for screening, it is best to put that task in the hands of a reputable background check company who has provided you and the applicant consent and notice forms compliant with federal and state laws. If the employer feels compelled to screen social media itself, then limit the search to business sites, such as LinkedIn. Additionally, employers should assign such a task to screeners who are trained by human resources on what to look for. Only that information should be included in their screening reports, so information that cannot be lawfully be used is not given to decision makers.

“You’re not my friend”

Many states, such as California, Illinois and Pennsylvania, have made it unlawful to require an employee or applicant to provide personal usernames and passwords to social media sites. Managers should resist the temptation to make or accept a Facebook “friend” request, whether intended as a measure of friendship or as a way to keep an eye on their team. Managers may come into contact with information they should not have that could be alleged to influence an adverse employment action. In a recent case, an employee’s rejection of her manager’s friend request was the precursor to a series of alleged retaliatory actions for her refusal to accept the manager’s sexual advance. As absurd as this may sound, the employer did prevail, only after incurring legal fees to defend the lawsuit.

Moreover, it is unlawful for an employer to use passwords it finds in employee offices to log-in to an employee’s personal social media or email account. It is very tempting for an employer to want to take such steps to investigate serious misconduct but civil privacy and criminal computer hacking laws are implicated.

 

Avoid false advertising

The federal Fair Trade Commission regulations prohibit deceptive endorsements in online advertising. This requires an employee who posts online, in a blog for example, endorsing or commenting positively about their company’s product or service, to disclose their true identity and employee affiliation with the company. Many companies prefer to prohibit employee endorsements rather than try to police compliance.

 

What’s the next step?

Employers and their counsel should think through the issues and develop a social media policy. Key areas should include: that employees do not speak for the company unless given permission to do so, limit personal social networking while at work, be respectful of others, avoid posts that can be taken as malicious, obscene or discriminatory to legally protected classes and encouraging employee access to internal company channels to address their concerns. The policy should also include instruction not to disclose information of private affairs of individuals, company legal affairs and attorney-client communications, content that belongs to others and trade secret and confidential proprietary information. 

Contributing Author

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Mark Terman

Mark Terman is partner in the national law firm of Drinker Biddle & Reath, LLP where he handles labor and employment litigation and counseling matters for employers and their management. He is based...

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