(Nonprofits+Politics)2.0

July 31, 2009

Social Media & Employer Liabilities

Filed under: Technology — Tags: , , , , , , — kgilnack @ 4:36 pm

A couple of weeks ago I had the pleasure of attending a very interesting roundtable hosted by Hirsch Roberts Weinstein LLP on the legal and HR implications of employee use of social media.  So much of my thinking about social media centers around how individuals and organizations can use technology to advance mission-driven or professional goals, but it was interesting to hear the perspective of how employers view and can/should address employees’ personal use of social media.

Here are some notes on the interesting facts that I left the session with (Disclaimer: Nothing in this post is intended as legal advice or to replace consulting with an attorney)…

So can employers fire employees over their internet postings?

  • Employers are unlikely to face liability for firing an at will employee over something inappropriate on a public profile
  • Employers may face liability for firing employees over postings in a private forum, especially if they request access to that forum in the workplace.  This notably came up on the Houston’s Restaurants case, where the employer demanded access to a password protected forum and the courts found  that:
    • Company did violate state and federal wiretapping laws by demanding access to a private online space
    • Employees’ first amendment claim was thrown out pretrial
    • Jury found that password-protected pages are a private space, but in this case said there was no expectation of privacy

Can they fire you for not using social media?  Employers can require use of social media sites for company purposes if for legit business purposes like scheduling, sharing info, or project management. [Didn’t get into requiring use of personal accounts for those reasons.. assume that can’t be forced but a second profile or purely professional profile can be required. Could have used more discussion.]

Potential Benefits of using social media

  • For employees
    • Quick answers to questions
    • Personal PR and branding – a virtual public résumé
    • [not mentioned] Building and maintaining a relationships for personal and professional uses
  • For employers
    • Effective means of communication = effective company
    • Expand visibility
    • Recruitment
    • Background check for potential new employees (though one Texas bank has barred HR from using SM sites for fear of discovering, for example, a potential employee is pregnant, which they couldn’t ask in an interview.  HRW didn’t advise taking that approach, just don’t not hire people for the wrong reasons…)
    • Soliciting feedback from customers and employees
    • Modify marketing and development plans
    • Allowing collaboration and knowledge sharing
    • [not mentioned] Unsolicited feedback from customers and employees – listening via Twitter and Blog searches
    • Influence product (and brand) perception
    • Creating focus groups, direct customer contact

Potential Problems of using social media

  • For employees
    • Your words live on forever and can come back to haunt you
    • Exercise great discretion with respect to content
    • Posts can lead to job loss and other problems
  • For employers
    • Drain on productivity (though they only used simple math of multiplying 30 minutes of Soc Media x 100 Employees x 1 year to show that adds up to a lot of time not working.  They ignored a recent study that concluded allowing workplace social media uses can increase productivity by 9%)
    • Risk of malware, spam, and viruses
    • Exposure of confidential info and related liability
    • Social networking sites are premised on a user surrendering a certain level of privacy
    • Reputational risk
    • 74% of employed Americans believe it is easy to damage a brand’s reputation via social networking (whatever “thinking it’s easy” actually means…)
    • Bandwidth concerns

What’s an Employer To Do in the Workplace? Simple, pick one of three options..

  1. Ban all access to social networking sites and the internet – Draconian and not recommended
  2. Allow unmonitored access – has benefits but also increases risk
  3. Limited access – their recommendation – allow but consider safeguards

Can/should Employers Watch?

  • Monitoring online activity at workemployees should know that any keystroke, email, text, etc. sent on the company’s system may be legally monitored. Have employees sign policies related to internet usage at work and what they are permitted to say and do during work hours, as well as that failure to comply can result in dismissal
  • Perceptions of Monitoring out of work
    • Among employers
      • 60% of execs feel they have a “right to know” hoe employees portray themselves and their org online
      • 30% admit to formally monitoring social networking sites
    • Among employees
      • 53% believe that content of social networking pages are “none of any employers’ business”
      • 33% never consider what the boss would think of their postings; 27% don’t even consider consequences of their postings
      • 61% wont’ change what they’re doing if the company’s watching (includes those that are already acting responsibly)

Tips for updating/creating policies around internet use and social networking

  • No interference with work activities – consider monitoring software
  • Let employees know their social networking activities outside of work may be monitored
  • Publication of information on social networking sites must comply with all company policies regarding ethics, privacy, and the protection of confidential and proprietary information
  • Don’t share company or client secrets
  • No references to company clients, customers, or partners without permission
  • On personal blogs, make clear that the views are the author’s, not the company’s
  • No use of company logos and trademarks
  • Be respectful of company, co-workers, competitors, colleagues – online activities reflect upon the company
  • Respect copyright laws – cite sources
  • Be transparent – don’t hide behind phony identities

Some Questions for YOU…

  • Does your employer have an employee social media policy / social media & technology aspect of your HR policies?
  • How do you feel about being monitored in the workplace – or out of the workplace?
  • Have you used social network to research new hires?  How about partners, donors, or anyone else?


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14 Comments »

  1. This is a great post about HR and social media and this is a big debate. On being monitored, people might have private profiles, but if employees Google Search or catch a cache, that might be the problem and the information is leaked. I always tell people be careful what you write. You can still be critical, but be fair because everyone is looking.

    I have used social media on hires for companies and you get some picture. The more information I get, the better. I want to see if the person is learning through tweets or blogs. I think it’s a benefit, but on “paper” you might look good, but a face-to-face meeting is a whole different aspect and that is where the collaboration and chemistry is key and if their profile matches the real-life person.

    Comment by Tracy Tran — July 31, 2009 @ 5:03 pm

  2. Thanks Tracy for sharing your thoughts. I completely agree that whether private or public, your only real safe bet is “not to write anything you wouldn’t want posted on a billboard with your name and picture next to and your mom driving by.” I wish I could remember who I heard that from, but it’s good advice.

    However, I think esepcially for young professionals who may be coming out of college and a culture of sharing all of their hijinx on Facebook, and who come from a background of understanding how to use privacy settings, it can be a tough adjustment to accept that (a) employers will search for you (b) co-workers, colleagues, et al may friend you (c) nothing is completely private, even when the setting is set to private.

    I also wonder if the rise in personal branding has shifted our societal expectations – once upon a time I did believe that I looked at social networks as ways of staying connected and sharing experiences with friends. Now whether it’s LinkedIn or Facebook I am not surprised to have colleagues and people I haven’t even met friending me. Should there be a way to share personal thoughts with some friends on the internet without sharing them with the whole world? Does it exist? Either way, be employees should be weary of the risks of lashing out on the internet, and employers should be weary of the risks of not monitoring what’s said about them, as well as being too aggressive in their monitoring.

    There is no doubt that no matter how polished someone looks on the web, you don’t really get a sense of them until you meet in person. But, I also have Googled and Facebooked potential co-workers, roommates, and others, and I tend to think that’s an accepted practice now. The internet is public, people! But, I’d like to hear from anyone who wants to posit a counter argument:)

    Comment by kgilnack — July 31, 2009 @ 5:39 pm

  3. Interesting post and while it might answer the question of what is technically legal, it seems that we easily miss out on what’s right. I am especially disturbed by the suggestion that employees be required to clarify that their blog or personal websites do not reflect the views of the employer. This seems like an egregious infringement on the employee, and also seems to treat new media differently than old media. If an employee were to write a letter to the editor (old media)about a controversial topic like same-sex marriage or even a local zoning dispute, should the employer also require that the employee include such a disclaimer? I have a full blog post on this here: http://chadswaney.com/2009/08/18/who-owns-my-blog/

    Comment by Chad Swaney — September 9, 2009 @ 12:24 pm

  4. Thanks for taking the time to comment, Chad. I would agree that this post is intended to provide a layman’s understanding of what is legal based on my notes from a recent legal seminar on social media and HR.

    I personally tend to be of the opinion that the old way of controlling the message and stifling employee’s ability to communicate and engage in online communities to be arcane and ultimiately have negative consequences… I don’t know of anyone who thinks highly over the stances organizations like the NFL or the AP have taken.

    However, I don’t think the idea of a company being concerned by how it is represetned by its employees is a new one. Unlike the conversations we have over beers with friends or letters to the editor that we write as private citizens, it can be harder to tell what communication is official or unofficial.

    If an employee were to write a letter to the editor about a controversial topic, it’s generally implied and obvious they’re writing as a concerned citizen, there’s no link from that newspaper copy over to a bio that mentions where you work, your employers webiste, or a LinkedIn profile, which I think is one of the major differences.

    Similarly, if you discuss issues related to your work, or link to it from LinkedIn, or otherwise have any sort of cross-over between your blog identity and your work identity, I don’t think it’s unreasonable to clarify in what role you are speaking. Should you be fired just because you forget the disclaimer? Probably not, but what if you say something that costs the company a client? What if you say something that almost costs the company a client, but they’re able to smooth it over because it’s clear your views didn’t represent the company?

    I don’t think any company needs to tolerate its employees badmouthing them from a bullhorn on a street corner, or on a blog. Nor should they tolerate them sharing secrets with a friend or through a tweet.

    I generally feel like the more upfront you are about who you are and in what role your communicating on social media, the better off you and your audience will be. There have been “good guy clauses” in contracts and firings for not representing your company well for ages, and now I think employers are trying to be as fair and consistent as they can on this new platform (granted some are far more fair than others).

    I’m curious how you feel about employers vetting potential employees via their profiles on social media sites and hope we can keep this conversation going.

    Comment by kgilnack — September 9, 2009 @ 3:06 pm

    • You just earned 1,000,000 points for saying that you find “the old way of controlling the message and stifling employee’s ability to communicate and engage in online communities to be arcane and ultimately have negative consequences”

      I agree that things MIGHT possibly be more blurred in new media than old, but I also think that media consumers are more savvy than they used to be. I think most media consumers can tell whether I am blogging as “myself” or as a corporate cog. I still find it irritating that one’s employer would try to assert itself as controlling my blog somehow.

      The issue of social media reviews in employment searches is quite a sticky one. I would imagine you have a legal opinion on the matter, but to me it seems dangerous for employers to do. If a potential employee reveals on a facebook page that he is gay, divorced, transgendered, of a racial/ethnic minority, couldn’t that open up the employer to increased liability because the applicant could accuse them of discrimination?

      In my personal approach to work and career, I welcome future employers to scan my social media profiles. I actually wrote a blog post on it: http://mini.chadswaney.com/post/50211787/your-facebook-profile-as-a-litmus-test. My opinion is that if a potential employer will exclude me from consideration because there are photos online of me enjoying a beer, going on a political diatribe, etc, then they are saving us both a lot of time and energy, because they sound like an organization I wouldn’t want to work for in the first place.

      Comment by Chad Swaney — September 9, 2009 @ 3:23 pm

      • I have opinions, but none are legally meaningful. These are just notes I took at a workshop put on my lawyers. However, I’m always happy to offer an opinion on just about anything 🙂

        RE: “If a potential employee reveals on a facebook page that he is gay, divorced, transgendered, of a racial/ethnic minority, couldn’t that open up the employer to increased liability because the applicant could accuse them of discrimination?”

        Perhaps, but only if they have someone who is prone to discriminating in charge of the hiring. Could just as well discriminate based on what they see and hear in real life, as well. That person’s always a liability and should be gotten rid of.

        RE: “My opinion is that if a potential employer will exclude me from consideration because there are photos online of me enjoying a beer, going on a political diatribe, etc, then they are saving us both a lot of time and energy, because they sound like an organization I wouldn’t want to work for in the first place.”

        Agreed!

        RE: “I still find it irritating that one’s employer would try to assert itself as controlling my blog somehow.”

        I understand the feeling, but would also look at putting that disclaimer as freeing yourself from your employer (e.g. saying “I’m off the clock and I’ll say what I want [so long as it doesn’t create a reason for my employer to fire me]”). And it frees the company from being associated with employees who do go “off the ranch” and make it tougher to adopt more open policies.

        My take on the idea of social media policies is that they should be a natural add-on or already covered by employee policies. Beth Kanter sums this idea up well here: http://beth.typepad.com/beths_blog/2009/04/social-media-in-the-nonprofit-workplace-does-your-organization-need-a-policy.html

        Comment by kgilnack — September 9, 2009 @ 11:22 pm

  5. I’m also of the opinion that if you’re making commentary about the field you work in, tread lightly and consult your employer. Otherwise, still speak wisely, but no need to feel quite as cautious about it. I’m lucky to have worked in fairly laid back environments, but I still know that what you put online is, as said, on a billboard. It’s wise to keep it clean and respectful. I do my best to only say things I’d say in person, and directly to the person or organization I’m writing about. Keeps me well behaved.

    Comment by Amber — September 9, 2009 @ 3:18 pm

    • Agreed – staying behaved when you’re on the internet (or at least as much as you would in person) is a good policy 🙂

      Comment by kgilnack — September 9, 2009 @ 11:04 pm

  6. If the letter to the editor is a valid example, it’s apples and oranges. I write opinionated letters to the editor of my local paper (they don’t often see fit to publish ’em, though), and I don’t add any disclaimers. BUT, I also don’t mention my employer. On my blog, I have a bio section, which states who I work for, and I mention my employer (Earthjustice – I have a great employer) somewhat regularly. So I have the disclaimer, because there is a realistic chance that someone finding my blog might mistake it for something intended to represent Earthjustice, which it isn’t. My primary motive in adding the disclaimer is to avoid any confusion. That’s in both my interest and my organization’s. But I agree that it’s good legal advice, maybe with the clarification of “if your blog discusses your work, or makes clear who you work for, or if it’s well-known who you work for, regardless of whether it’s mentioned on the blog, you should make it clear that the blog is not a representation of your employer’s views”.

    I don’t think this is discriminatory or burdensome. I’m clearly not representing my company at my brother-in-law’s barbecue, but it is not clear that my blog, which is focused on topics relevant to my profession, is personal. I also run a website devoted to the classic cartoon character “Krazy Kat”, and I don’t put an employer disclaimer on that site, because the chances of someone confusing it for a company web site are nil.

    Comment by Peter Campbell — September 9, 2009 @ 3:27 pm

    • I think you hit the nail on the head when you noted that the skills of the consumer come into play–for example, when determining that your cartoon-related website isn’t related to Earthjustice. I also agree that you might find it helpful for your own reasons to make a statement distinguishing your personal opinions on your blog from those of your employer. My concern is the “or what” part of such a policy. If you have a policy that states “if your blog discusses your work, or makes clear who you work for, or if it’s well-known who you work for, regardless of whether it’s mentioned on the blog, you should make it clear that the blog is not a representation of your employer’s views” is it a terminable offense not to do so?

      Comment by Chad Swaney — September 9, 2009 @ 3:46 pm

      • RE: “If you have a policy that states “if your blog discusses your work, or makes clear who you work for, or if it’s well-known who you work for, regardless of whether it’s mentioned on the blog, you should make it clear that the blog is not a representation of your employer’s views” is it a terminable offense not to do so?”

        Like all policies I’d imagine it would only come up if the post creates an issue, and the employer would either request it be done and go through the supervision process (some combo of conversation, note in file, suspension, termination, alternative reprimands). To speak in generalities I’m probably not qualified to make, anything non-discriminatory can be a fire-able offense, so I think the question of “or what” is moot.

        Which again brings us to the legal vs. good question. I think it’s good to let employees know about what to expect and what’s expected, it’s probably good to put disclaimers on personal blogs (as well-summarized by Peter), and it’s also good to avoid draconian employee policies – but I don’t think a policy requesting employees have the disclaimer is draconian… at least by today’s standards. Who knows how personal branding and the blend of work/life will change that dynamic. Could mean less privacy and more caution online, or more acceptance and understanding of individual use of social media.

        Comment by kgilnack — September 9, 2009 @ 11:41 pm

      • All well-reasoned thoughts, but I still can’t get over my company telling me what I must and must not put on a personal blog, especially if it doesn’t pertain directly to them. I guess I must have a different view of the world, but I just have a problem with my employer owning me outside of work. I don’t think I could continue working for a company that required me to put such a disclaimer on my blog.

        Comment by Chad Swaney — September 10, 2009 @ 2:20 am

      • Just as a point of clarification, I hope that last comment didn’t sound angry or bitter. I am perfectly at peace. Some people are comfortable with some things that others aren’t, and it is just part of what makes us all unique

        Comment by Chad Swaney — September 10, 2009 @ 2:24 am

    • Thanks, Peter, for commenting. I think your rational for deciding when to use disclaimers and when not to makes perfect sense. Useful for you and your employer, and the type of common sense everyone should use, but that written policies can elucidate for the common-sense-challenged.

      Comment by kgilnack — September 9, 2009 @ 11:26 pm


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