Why Employers in Washington State Should Maintain Policies To Address Social Networking
According to a report from Forrester Research, you can expect your present and prospective employees use social networking. According to the study:
- A third of adults post at least once a week to social sites such as Facebook and Twitter.
- A quarter of adults publish a blog and upload video/audio they created.
- Nearly 60% maintain a profile on a social networking site.
- 70% Read blogs, tweets and watch UGC video.
Employers can use these activities to their advantage in many respects. “Googling” prospective employees may have benefits. Social networking sites may be useful to market your company, monitor existing employee practices, and screen potential applicants. However, such practices should be narrowly tailored to avoid violating the law.
Pre-Employment Screening
The law is clear regarding certain prohibited questions an employer can ask a prospective employee. For example, an employer cannot ask an employee about their political views, marital status, or medical history. Yet, online screening can too easily yield information about prospective employees’ traits protected by Title VII, the ADA, the ADEA, and the USERRA, or other state, local and federal regulations. Though innocently acquired, the company cannot refuse to hire a prospective employee on basis of these traits.
Employers should maintain an internal policy concerning its use of information acquired from social networking sites in the hiring process. When in doubt, call your labor and employment counsel.
Monitoring Current Employees
If you took a poll of your present employees, it is extremely likely that at least one of employee has an account with a social networking site (e.g., Facebook, Twitter, Myspace), maintain a personal or family blog, or post photographs online through a host of free websites (Snapfish, MSN).
Though this area of law is evolving, it appears an employer may discover information from a site available to the public, and use the information as a basis for a termination or disciplinary action. If, however, the information is obtained from a domain only accessible by permission, and permission was obtained through coercion or deception, the employer may be liable for invasion of the employee’s privacy. Companies should consult their labor and employment counsel prior to accessing password-protected or non-public employee blogs or sites and prior to taking any action against the employee based on information obtained.
Marketing for the Company
The internet is a seemingly unlimited resource for marketing goods and services. Many companies use social networking to their advantage, creating profiles on sites such as LinkedIn, Facebook and Twitter. Employees, customers, and others can become a “fan” or “follow” the company’s profile and provide written commentary about the company. This commentary can be a cost-effective marketing tool, but it has significant drawbacks. Unless properly planned and implemented, these sites can become a sounding board for disgruntled employees to vent grievances. While potentially offensive to the company, action may be barred if the commentary is protected activity under the National Labor Relations Act. Before taking any action on such commentary, employers should consult their labor and employment counsel.
Crafting Appropriate Policies
If you have an existing employee handbook, review the materials to ensure it not only meets your expectations of employees, but complies with federal, state and local laws governing employment relationships. For example, topics that should be addressed in your handbook include:
- Use of company’s property for social networking.
- Employee’s expectation of privacy should be defined when using company’s property (e.g., mobile phone/computer/laptop).
- Disseminating statements about employers/customers/other related parties. (NOTE: Use of sites such as “ping.fm” and “whzzz.com” permits users to consolidate and post simultaneously to all of their social networking sites—with a quick key stroke and one click, the information is disseminated broadly and quickly)
- Workplace harassment.
- Fraternization policy.
Every company is different and requires creative solutions to preserve their working environment and reflect their unique culture. Beresford Booth is here to help you mitigate your legal exposure while retaining those distinctive qualities that make your business successful.