Whether engaging an audience, providing customer service or fostering a sense of community between co-workers, social media presents an opportunity to augment the way a business communicates.
Research firm eMarketer released a study in 2013 that estimated the total number of social media users globally at 1.73 billion, and according to the Pew Research Center, 83 percent of those between the ages of 18 and 29 maintained some level of social media presence in 2013.
Organizations have an opportunity to use social media to converse with current and prospective employees. But the laws surrounding social media's use in the workplace are as nebulous as the medium itself. Legal departments need to fully understand the risks associated with social media before developing policies about these interactions. In some cases there are practices they will want to steer clear of all together.
An Aberdeen Sourcing Report reveals that 62 percent of organizations have identified sourcing as their greatest hiring challenge in 2013. The same report found that 64 percent of job seekers used social media sites to search for jobs. With evidence of a willing workforce active on networking sites, it's no wonder that organizations are increasingly using these resources to find the right people.
“The biggest risk associated with using social media in the hiring process is that information that employers cannot ask about in an interview (think age, religion, national origin, sexual orientation, disability, marital status, family responsibilities, political views and so on) may be readily available online, or reasonably inferred based on the content of an applicant's social media profile and/or postings,” says Chad W. Moeller, a partner and employment attorney at Neal, Gerber & Eisenberg LLP.
Should candidates be passed over for opportunities and assert that the employer retrieved information about any of these protected categories from their social media profile, they could easily raise a complaint under the Civil Rights Act, Americans with Disabilities Act, or even the Age Discrimination Act.
“Employers should evaluate the risks associated with social media screening and should train and educate staff responsible for hiring on the importance of non-discriminatory hiring decisions. If employers learn of behavior or activity that causes concerns through a social media search, it is best to offer the applicant a chance to explain during the interview process,” explains Michael Moschel, a partner in the labor and employment practice at Bass, Berry & Sims PLC.
Hiring is not the only space complicated by social media. Employees are often looked at as extension of the organizations they work for, and while this may be the case to an extent, employers cannot wholly control what employees say on any forum.
Under Section 7 of the National Labor Relations Act, employers are prevented from stopping any protected concerted activity that an employee engages in. Those activities include the right to voice an opinion about working conditions, management or anything else that may be affecting job satisfaction so long as it's done to initiate or induce coworkers to engage in group action.
“It's opened up a lot of litigation on employer policies even when they are not enforced, when they’re simply on the books, whether or not a policy can be construed by an employee to chill from the exercise of their Section 7 rights,” says Brian Hayes, shareholder and co-chair at Ogletree Deakins.
“Employers should seek the advice of an attorney with regard to the interpretation of these opinions, and should have an attorney review their policies to ensure compliance with the NLRB's guidance and the changing landscape of social media,” adds Moschel. “The most effective policy is one that provides sufficient examples of prohibited and protected conduct, so that in context, employees would not reasonably read the rules to prohibit Section 7 activity.“
Beyond activity protected by the NLRA, there will inevitably be interactions online that may be aggressive, illegal or otherwise unacceptable to employers. While an employee's right to free speech is protected under a multitude of regulations, that doesn't mean that everything he or she says online is acceptable.
“An employer's social media policy should always prohibit employees from engaging in any type of discrimination or harassing conduct, and employees should be treated no differently with respect to discrimination and harassment than they would in the workplace. When it comes to expletives, however, use of offensive language does not necessarily remove social content from Section 7 protection,” Moschel says.
And in some cases, disciplinary action on the part of the employer can further exacerbate the issue. Joseph J. Lazzarotti, shareholder at Jackson Lewis P.C., explains: “The first thing I ask when it get a call from a client on punishing an employee is, ‘Do you really want to do something?’ Not every case should be jumped on and disciplined. Sometimes someone gets carried away, or upset or emotional on social media. It could just be a singular incident; if the employer just lets it go, that might be the end of it. Of course if it's harassment or illegal or disclosure of confidential information you need to deal with it, but sometimes dealing with something is worse than not, and can antagonize a person.”
Obviously an organization's social media policy is its first line of defense when it comes to addressing these issues, and while there is no one-size-fits-all option for implementing best practices in social media, there is some general advice.
“Legal departments need to engage their organization's leadership to ensure that their corporate strategy is reflected in the social media policy. Social media is a tool that can be leveraged to the company's benefit and needs to be considered together with the business objectives and landscape of the company as a whole. Ultimately, the particular risks and the scope of a company's social media policy need to be tailored to that company's business, industry and culture,” says Bob Brewer, a partner and co-chair at Bass, Berry & Sims PLC.
Hayes comments that employers will want to watch developments in the NLRA space to ensure their practices are in line with the most current case precedents and conversations surrounding those laws. “If the rules for whatever reason continue to evolve, as in some instances they have to, to the extent that it's a constantly moving target for employers, it's very difficult for them to comply and that's a problem the agency in its mission,” he adds. “If you can't set out clear and stable rules of the road for the regulated community then it's really difficult to expect compliance.”
“I think it's important to prevent siloing,” Lazarotti says, talking about the organizational stance a company should take when developing social media policy. “ In a siloed environment you can have policies that contradict themselves or that are not really useful, so a GC needs to be willing to coordinate across all departments to make some of these things work.”
While social media is no longer an anomaly in the corporate landscape, it's still a relatively new tool at the disposal of employers. As always, awareness of trends, conversation with peers and triangulation of policies is a solid path to a more compliant and useful social media workplace strategy.