Section Review

Social media and the workplace: a comprehensive guide for employers

The use of social media - by both employees and employers - has become prevalent in the workplace. This presents both opportunities and challenges for employers, who are not always fully aware of the legal and business implications of the use (and misuse) of social media.

What are social media?

"Social media" are any type of Internet-based media created through social interaction, where individuals primarily produce (rather than consume) the content. Social media relevant to the workplace can be broken down into four subgroups:

  • Social networking Web sites: These Web sites host Internet communities that allow individuals to interact with each other in various ways, such as connecting with friends and family (Facebook), sharing music (MySpace), and building a professional network (LinkedIn).
  • Blogs ("Web logs"): These are usually individual online journals or commentaries that allow for social interaction through a public "comment" feature. Some businesses also sponsor or create content for corporate blogs (for news sharing, marketing or public relations purposes). Twitter is considered a "micro-blog."
  • Online multi-user virtual worlds: These are online gaming communities where individuals interact and communicate via their customizable online characters (called "avatars"), which often appear to be three-dimensional. Popular virtual worlds include Second Life (interaction through a virtual economy) and World of Warcraft (interaction through virtual gaming). These virtual worlds generally include a chat or instant messaging feature through which participants can communicate.1
  • Video-sharing Web sites: These are online communities where individuals upload, view and comment on videos. YouTube is the most widely-known of such sites.

The content of these media is generally created for individuals, by individuals, so why should employers care? Because each medium is ripe with opportunity and risk.

Why should employers care about social media?

In a 2009 study by Deloitte LLP on social media and the workplace, 74 percent of the 2,008 employed adults surveyed responded that they believe it is easy to damage a brand's reputation via social media.2 Alarmingly, 61 percent of the employed adults responded that even if their employer is monitoring their social networking profiles or activities, they won't change what they are doing online, and 53 percent responded that their personal social networking pages are none of their employer's business. Contrast this with 60 percent of the 500 business executives surveyed, who believed that employers have a right to know how employees portray themselves and their organizations online.

Another 2009 study confirms that employers are acting on this perceived "right to know." In a study by Russell Herder and Ethos Business Law on social media and the workplace, 36 percent of the 438 management, marketing and human resources executives surveyed use social media to see what current employees may be sharing online, and 25 percent use social media to check the background of prospective employees.3

Despite these social media use statistics, employers have not adopted a uniform approach to addressing social networking in the workplace. In a 2009 study on social media and the workplace by Robert Half Technology, 54 percent of the 1,400 chief information officers surveyed completely prohibit social networking sites in the workplace, while 19 percent permit social networking sites in the workplace for business purposes only.4 Of the 438 management, marketing and human resources executives surveyed in the Russell Herder/Ethos Business Law study, 40 percent block employee access to social media, while 26 percent encourage employees to use social media to further business objectives. A stunning 69 percent of these 438 respondents indicated that their company does not have a written social media policy.

What are the major issues for consideration regarding social media in the workplace?

Social media now permeate the entire life cycle of employment: during pre-employment inquiries, throughout the period of employment, and after separation from employment. Employers must consider the use and misuse of social media at each stage.

Pre-employment: Whether to search for applicant information in social media

In this Information Age, employers can now access more information about applicants by using social media than is typically available by using an application form or résumé drop.5 For example, an employer can follow an applicant on Twitter, search the applicant's public Facebook or LinkedIn profile, or browse the applicant's personal blog. Applicants may reveal more information about themselves through text and photos in social media than they would in an interview, and, in making a hiring decision, employers can use information relating to an applicant's illegal drug use, poor work ethic, poor writing/communications skills, feelings about previous employers, and racist or discriminatory tendencies.6 Employers can clearly benefit from this lawful use of information obtained from social media in the screening process.

However, employers can face lawsuits for unlawful use of the information obtained from social media. Employers may face liability under federal and state law (e.g., Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act, state anti-discrimination laws) for using any information learned from social media about an applicant's protected class status (e.g. race, age, gender, national origin, military status, disability, religion, marital status, and in some states, political affiliation or sexual orientation) in a hiring decision. The employer's search of an applicant using social media may be revealed in later discovery, and it may be hard for the employer to prove in later litigation that it didn't use the information obtained in a social media search when making its employment decision.

In addition, employers may face liability under certain state privacy laws for basing employment decisions on an applicant's lawful, off-duty recreational activities (e.g., smoking).7

Employers should consider whether the benefits of using social media to screen applicants outweigh the risks. If an employer wants to supplement traditional hiring practices (application form, résumé, writing sample and/or interview) with a social media search, the following is a suggested approach for creating a global policy for using social media in hiring decisions:

  • Screen applicants in a uniform manner. Create a list of the social media sites that will be searched for each applicant.8 Create a list of the lawful information about applicants desired from every social media search. After these search criteria are compiled, screen all applicants using that lawful criteria. If employers do not have the time, resources or inclination to screen all applicants using social media, they can choose a non-discriminatory subset of applicants to screen (i.e., choose to screen applicants for certain positions, levels or grades of employment).
  • Have a neutral party (e.g., an employee in a non-decision-making role) conduct the social media search, filtering out any protected class information about the applicant and reporting only on information which may lawfully be considered in making the hiring decision.
  • Don't "friend" applicants in order to gain access to their non-public social networking profiles. The applicant may feel that he or she must accept the request in order to get the job offer, and such a request may make it harder for the employer to prove that it didn't use the information discovered when making its employment decision.
  • As always, employers must be able to point to a legitimate, non-discriminatory reason for the hiring decision, with documentation to support the decision. Employers who are considering making an employment decision based on information found in social media should always consult with employment counsel prior to doing so.

During employment: Whether to allow or encourage employees to use social media

There are many benefits to allowing or encouraging employees to use social media in the workplace. The use of social media in the workplace can create a more collegial atmosphere through less formal communications between co-workers, and learning personal information about co-workers through social media can lead to shared experiences and stronger working relationships. Social media can also be used for business development purposes. In addition, blogs and social networking sites can provide a great opportunity for customers to discuss the company's products or services, and for employers to monitor and change their business practices, services, and products accordingly.

On the other hand, employers trying to foster camaraderie in the workplace through social media can instead foster awkward and potentially harassing situations when use of such sites turns inappropriate. When a supervisor wants to be a subordinate's "friend" on a social networking site, it can create an awkward interaction between the supervisor and subordinate. If the subordinate accepts the invitation, the supervisor can see the subordinate's other friends, photos, "wall" postings, social activities, and other personal information (and vice versa), unless privacy settings are adopted. If the subordinate doesn't accept the invitation, he or she may be concerned that his or her employment opportunities may suffer or that the supervisor will be offended. Either way, the supervisor/subordinate dynamic is changed.

In more extreme cases, misuse of such sites can give rise to claims of co-worker or supervisor sexual harassment, or even cyber-stalking. Co-workers or supervisors can "poke" other employees or subordinates on Facebook. Co-workers or subordinates can harass the avatars of other employees or subordinates in Second Life. Derogatory or harassing comments on social media sites directed at fellow employees could create a hostile work environment.

The most obvious hazard to allowing or encouraging the use of social media in the workplace is that employees can spend so much time using social media during working hours that efficiency and productivity fall,9 but the biggest risk of social media in the workplace is the external employee misuse of such media. For example, employees can:

  • abuse their access to their employer's confidential or inside information by making unauthorized disclosures of company information (confidential, proprietary and/or trade secret) via social media, especially anonymously;10
  • misuse social media in a way that leads to corporate embarrassment and public relations issues;
  • comment or post photos on social media sites that disparage the employer or its customers, thus negatively impacting the employer's brand or image; and
  • blog or comment via social media regarding confidential information about mass layoffs, confidential settlement or severance agreements, and the like.

A few recent examples demonstrate this risk:

  • The Kansas City Chiefs football team suspended and then released its record-breaking running back Larry Johnson after he made Twitter postings insulting fans, questioning the head coach's experience, and using a gay slur. In the interim between the Twitter posts and the release, the gay-advocacy group GLAAD called for an apology from and punishment of Johnson for the slur, and Chiefs fans started an online petition demanding his termination from employment.
  • Virgin Atlantic terminated 13 cabin crew members after they posted disparaging comments about the airline and its customers on Facebook. Although these employees did not have traditional "desk jobs," and therefore were not online during working hours, they still managed to use social media in a way that disparaged the employer.
  • A Domino's Pizza employee in North Carolina made a video of himself (with another employee narrating) preparing sandwiches for delivery in a way that violated health code standards and generally disgusted viewers. The video went viral on YouTube, and Domino's was dealt an immediate and urgent public relations crisis.
  • Three teenage employees of Kentucky Fried Chicken were fired after turning a restaurant sink into their own personal hot tub. The employees posted photos of themselves in the sink, wearing only undergarments, on MySpace, and the comments on the pictures and the name of photo album made it clear that the stunt took place at Kentucky Fried Chicken.
  • A Delta flight attendant was suspended and eventually terminated in 2004 for posting pictures of herself in uniform and inside a Delta plane on her anonymous personal blog, originally called "Diary of a Flight Attendant," where she referred to herself as "Queen of Sky." She later sued the airline for sex discrimination, alleging that male flight attendants posted similar pictures of themselves in uniform on match.com and were not subjected to discipline.

Examples such as these support the Deloitte LLP study, cited above, in which 74 percent of the 2,008 employed adults surveyed responded that they believe it is easy to damage a brand's reputation via social media.

To address these risks, employers must first consider the proper level of encouragement (versus an outright ban) of social media use in the workplace. This will depend on the employer's industry, culture and workforce. For some professions, industries or positions, the use of social media might be appropriate or beneficial for business development purposes (i.e., for sales people to make and maintain contacts). For others, an outright ban may be appropriate for a workforce that simply has no business reason to access or use social media while at work or while using the company networks, facilities or equipment. However, such a ban could alienate employees, especially younger employees who grew up using social media, and could make all employees wary of the employer's "Big Brother" appearances.

Employers can combat some risks of social networking in the workplace by implementing and enforcing information technology, code of conduct, harassment, and confidentiality policies that specifically reference social media. At a minimum, employers must insert broad language encompassing social networking sites, blogs, virtual worlds and video-sharing Web sites into current IT, code of conduct, harassment and confidentiality policies.11 Employers should consider adding the following features, if appropriate, to create a comprehensive social media policy:

  • A clear statement that misuse of social media can be grounds for discipline, up to and including termination.
  • A prohibition on disclosure of the employer's confidential, trade secret or proprietary information.
  • A request that employees keep company logos or trademarks off their blogs and personal Web pages or profiles (including photos of employees in uniform) and not mention the company in posts, unless for business purposes.12
  • An instruction that employees not post or blog during business hours, unless for business purposes.
  • A prohibition on using company e-mail addresses to register for social media sites.
  • A prohibition on posting false information about the company or its employees, customers or affiliates.
  • A general instruction that employees use good judgment and take personal and professional responsibility for what they publish.
  • The name of someone within the organization for employees to contact if they have questions about any social media use or policy.
  • A statement that all employees with personal blogs that identify their employer must include a disclaimer that the views expressed on the blog are those of the individual and not the employer.
  • An instruction on proper topics for discussion that add value, if encouraging employee use of social media for marketing or business development purposes.

All supervisors and human resources professionals must be trained on the appropriate use of social media and how to consistently enforce the employer's social media policies. Any policy addressing social media must use broad language and be updated frequently, because social media will develop and change over time. A general culture of professional responsibility will go a long way towards ensuring that employees do not misuse social media.

Post-employment: Whether to "recommend" a former employee using social media

Social media even creep into the post-employment relationship between the employer and the former employee. Supervisors and co-workers are increasingly asked to "recommend" former employees on LinkedIn after separation from employment. This "recommend" feature allows people in a professional network to write positive professional reviews about other people in their network. Such a recommendation, as well as the recommender's name and company affiliation, will be visible on the former employee's LinkedIn page.

A positive recommendation on a person's LinkedIn page is the same as an employment reference, and should uniformly be treated as such. Supervisors may unintentionally run afoul of the employer's post-employment reference policy by posting a recommendation of a former employee on LinkedIn. An individual supervisor's recommendation on LinkedIn could conflict with the official position taken by the employer regarding the employee's performance; and a positive review of a former employee on LinkedIn could harm the employer in an employment discrimination litigation where the employer has said that the termination was performance-related, the former employee has alleged that it was because of his or her protected class status, and the LinkedIn recommendation indicates that the former employee's performance was stellar.

In order to avoid such situations, the employer's general post-employment reference policy must specifically cover recommendations via social media. For example, if the employer's post-employment reference policy is to only confirm a former employee's dates of employment and position, this stance should translate to social media as well - meaning, in most cases, that a supervisor will not be able to recommend a former employee on LinkedIn. Employers could also consider adding to their post-employment reference policy a prohibition on managers from "recommending" or commenting on the job performance of former employees via social media without prior specific authorization from the human resources department. If a post-employment reference policy regarding social media is adopted, employers should communicate such policy to current employees via an employee handbook or similar notification, and should consider notifying separated employees of such a policy in release agreements upon separation from employment.

Conclusion

Employers can no longer ignore the risks of social media in the workplace. Employers must be cautious in addressing these emerging workplace issues, even though employment-related litigation over social media is in its infancy. First, employers must understand the myriad issues surrounding social media in the workplace in order to strike the appropriate balance in the eyes of their employees and the law. Then, employers must craft appropriate policies and procedures regarding social media that are consistent with their industry and firm culture, and apply such policies in a consistent and non-discriminatory way.

Notes

1.    Although virtual worlds may not be familiar to many employers, these communities are popular among certain demographics, including men and those of Generations X and Y. Co-workers can and do interact with each other both in reality and in these virtual worlds, and the violent and/or sexual undertones (or overtones) associated with these virtual worlds make these communities ripe for sexual harassment, workplace violence or other misconduct among employees.

2.    Deloitte LLP, Ethics and Workplace Survey, Social Networking and Reputational Risk in the Workplace (May 28, 2009) available at www.deloitte.com/assets/Dcom-UnitedStates/Local percent20Assets/Documents/us_2009_ethics_workplace_survey_220509.pdf. This survey consisted of: (1) a national probability telephone survey of 2,008 employed adults (1,000 men and 1,008 women), who were 18 years or older and living in private households in the continental United States, and (2) an online survey (invitation only) of 500 business executives.

3.    Russell Herder & Ethos Business Law, Social Media, Embracing the Opportunities, Averting the Risks (July 2009) available at www.russellherder.com/SocialMediaResearch/. This survey consisted of an online survey of 438 randomly selected management, marketing and HR executives from U.S. companies.

4.    Robert Half Technology, Whistle - But Don't Tweet - While You Work, (Oct. 6, 2009) available at http://rht.mediaroom.com/index.php?s=131&item=790. This survey consisted of a telephone survey of 1,400 CIOs from U.S. companies with 100 or more employees.

5.    This is especially true in light of Facebook's recent changes to its privacy settings. On Dec. 9, 2009, Facebook changed the default privacy settings of its more than 350 million users. Now, certain information about each Facebook user (name, profile picture, current city, gender, networks, list of friends and list of "Pages" that the user is a "fan" of) is publicly available to all other Facebook users. The user can alter or hide some of this information, but only through obscure privacy settings. Facebook also unwittingly set some users' photo albums to public, although this setting can be altered (but unless the user takes steps to adjust the setting, the albums will remain public). See Facebook, A Guide to Privacy on Facebook, www.facebook.com/privacy/explanation.php?ref=pf; Facebook, Privacy Policy, www.facebook.com/policy.php.

6.    Some of these practices also carry legal risk. For example, it may not be possible to conclude from perusing an individual's Web posting that he or she is currently using an illegal drug, and making an employment decision based on assumption of such use may also constitute discrimination on the basis of a perceived disability.

7.     See, e.g., N.Y. Labor Law §201-d (2008).

8.    This list will likely include the most popular social networking sites (Facebook, MySpace and LinkedIn), any widely used blogs (Twitter), and a Google search for the applicant's name to reveal any other personal blogs. This list must be revised over time, as the use of currently popular social media sites declines and new ones become more widely used.

9.    A recent Associated Chambers of Commerce and Industry of India survey of 4,000 employees found that the average employee spends one hour per day at work on social media sites. See The Associated Chambers of Commerce and Industry in India, Corp. Employees Productivity Is Killed By 12.5 percent In Surfing Sites, (Dec. 20, 2009) available at www.assocham.org/prels/shownews.php?id=2265.

10.    Employers should also be mindful of the new Federal Trade Commission Endorsement Guides, effective Dec. 1, 2009. These guides are aimed at professional bloggers - those who blog for pay or free items. The guides address the FTC's concerns about deceptive practices through consumer-generated media and endorsements, and were drafted in such a way that employees who use social media in ways that promote their employer are bound to follow. Under the guides, any material connection between endorser (employee) and seller (employer) of a product or service must be fully disclosed. The endorser (employee) and seller (employer) each face potential fines of $11,000 per violation. See 16 C.F.R. § 255.5 (2009).

11.    Post-employment, employers should also incorporate language specifically referencing social media into the confidentiality provisions of their separation and settlement agreements. Employers should also consider adding a statement to the employee handbook or separation letter stating: "On or before your separation date, you agree to remove from your personal social media any designation or indication that you are a current employee of the Company."

12.    In a December 2009 opinion letter from the National Labor Relations Board Office of the General Counsel, the OGC's office opined on whether a particular employer's social media policy "could possibly be construed to chill Section 7 protected activity." In this opinion, the employer in question had a social media policy that prohibited "disparagement of company's or competitors' products, services, executive leadership, employees, strategy and business prospects," among other prohibitions. The employees who routinely used Yahoo! Groups to discuss an ongoing union organizing campaign were unsure whether this activity violated the social media policy, and felt that the social media policy infringed upon their freedom of expression. The OGC found that, taken in context with the rest of the social media policy - which prohibited, according to the OGC, other "plainly egregious conduct" - the prohibition in question could not reasonably be construed to apply to Section 7 activity: "Taken as a whole … the Policy contains sufficient examples and explanation of purpose for a reasonable employee to understand that it prohibits the online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about the Employer or working conditions." See 2009 NLRB GCM LEXIS 67 *10 (Dec. 4, 2009).

The Author

Renee M. Jackson is an employment attorney at Nixon Peabody LLP. She counsels domestic and international employers on the employment law issues they face in the United States, including restrictive covenants, wage and hour, workplace policies, discrimination, employee discipline, hiring and firing, and the use of social media in the workplace. She defends employers at the state court, federal court and agency level.

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