No Need For Panic: 10 Tips To Prevent Employee Issues With Social Media

Megan Winter is an attorney in the San Diego office of Fisher & Phillips.

With a half-billon users, Facebook has expanded its reach from college dormitories to the workplace, and your company likely employs at least one (or more likely several) users of social media.

It’s not just your recent graduates or interns that are posting photos, status updates, joining groups, and connecting with old classmates via social media. As of January 2010, 60 percent of Facebook users were over the age of 25. LinkedIn, a social media site dedicated to professional networking, has over 60 million users of all ages who are posting resumes, professional awards and recommendations from former coworkers or supervisors.

Only time will tell what will be the next popular social networking site, but social media is here to stay, and it can provide innovative new ways to interact and respond to your customers. But more and more, supervisors and human resource managers are faced with employee complaints or misconduct arising from use of social media, and the legal guidance from the courts on privacy, harassment, and off-duty conduct is years behind the technology, creating confusion for employers on the proper steps to take.

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Here are 10 tips for employers who want to be proactive about employee issues arising out of social media:

  1. Get familiar with Facebook, LinkedIn or other sites that are popular with your employees. Even if you aren’t planning to share photos of your last vacation to Hawaii with 200 of your closest “friends,” you should familiarize yourself with Facebook’s features so that if you receive a harassment complaint from an employee from a “wall post” or via “private message” or “messenger,” you can start the investigation with a baseline understanding of the issue. You don’t have to become an expert, but a familiarity with the features will help you start your investigation.
  2. Update current company policies. Your existing harassment, discrimination, confidentiality, and electronic communication/usage policies are useful tools to address employee issues that arise out of social media, and their application to social media will be strengthened if you include a specific reference to social media.
  3. Consider whether your company environment needs a specific social media policy. There is no “one-size-fits-all” social media policy because every organization’s culture is different. Some companies may not want, or need, a separate social media policy, while others may need a very restrictive policy that prohibits the employees from identifying the company as their employer. One middle-ground option is to require employees who identify the company as their employer to maintain professional standards in their postings, much as you would expect professional behavior when an employee is representing the company in traditional ways.
  4. Prohibit use of the employee’s company e-mail address. Each social media website requires the user to submit an email address as the person’log-in, and the site contacts the user at that e-mail address. These sites often generate a substantial number of e-mail messages each day, and productivity will be less affected if the 10 emails from Facebook letting the employee know about friend’s comments on a link that he posted is not mixed in with the e-mails from his supervisor about a weekly team meeting.
  5. Discourage your managers from “friending” their subordinate employees. Holiday photos and information about the manager’s kids create a facade of a familiar relationship that can make imposing discipline or handing out raises difficult for both the manager and the employee. Also, employees bringing discrimination claims in court have tried to use a manager’s comments on social media as evidence that the manager was biased against women. Overall, managers should be conscious that nothing on the Internet is private and that their employees may see anything that they post. Thus, they should limit their posting to items that they would be comfortable posting on the break room bulletin board.
  6. Immediately get a copy of any post that is the subject of a complaint. If another employee complains that her co-worker has shared confidential company information on a social media, have the complaining employee immediately print the content before you ask any further questions. Information posted on a social media site can disappear with a few keystrokes of the offending employee’s smart phone.
  7. Only use social media for employment screening in a consistent way. If your company chooses to search for applicants’ social media pages to assist with hiring decisions, then you must conduct the investigation in a uniform way (i.e. search the same sites for all applicants to a certain position). Consider having an employee who is not in a decision-making position screen the sites for the hiring manager. That way, the person searching can withhold from the decision-maker any information that he learns about the applicant’s disabilities, national origin, sexual orientation, or other protected characteristics.
  8. Warn managers to follow standard policies for recommendations on LinkedIn or other professional sites. LinkedIn and other professional networking sites allow for users to post recommendations for their co-workers. Your managers should not post employee recommendations or criticism on LinkedIn, and should follow your company’s standard policy regarding recommendations if any employee requests a LinkedIn recommendation.
  9. Be aware of possible protected, concerted activity. Some current employees or former employees have formed “groups” on Facebook, and employees may complain about their working conditions in these groups. Employers must act carefully if considering discipline for complaints that it perceives as disparaging because an employee who is complaining about his or her pay in a Facebook post could be engaging in protected, concerted activity under the NLRA, or be protected by state laws that prohibit employers from restricting employees from discussing their wages.
  10. Above all, use common sense. Employers have been responding to the “reply all” or “forward” button in e-mail for years, and social media websites are really just a new form of communication. Most employee issues related to the use of social media are actually traditional employee issues packaged with a technological upgrade — and employers already have the necessary tools in their arsenals to address these issues.

Megan Winter is an attorney in the San Diego office of Fisher & Phillips LLP (www.laborlawyers.com). Her practice involves representation of employers in a variety of matters including harassment and discrimination litigation, wage and hour class actions, and family and medical leave law. Megan also assists employers in developing workplace policies and procedures, and she regularly advises them regarding day to day employment issues and ways to avoid employment claims and litigation. Contact her at mwinter@laborlawyers.com.

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