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According to Facebook fifty percent of their nearly half a million users login every day to share messages and photos with friends (and the rest of the world) in an informal internet setting. Many businesses have started Facebook pages as part of their marketing campaigns and a re-cent survey reports that 45% of employers search social networking sites to screen job applicants. Whether on Facebook, LinkedIn, Twitter, or personal blogs, social net-working on the internet is a quickly evolving business risk.

What are the Business Risks of Social Networking?

While there are many excellent business uses for internet based social media venues, recruiting, branding, marketing, there are just as many legal issues when it comes to social media in the workplace. In addition to loss of productivity from on the job use, allegations of discrimination, har-assment, wrongful discharge, and retaliation can often arise from an employer’s use of information obtained from social networking sites.

Social Networking and Em-ployee Hiring, Firing, and Management

Good employers know that various federal and state laws prohibit discrimination in the hir-ing process and they do not ask inappropriate questions in appli-cations or interviews. But today job applicants have posted the most personal of information on the internet for all to see such as their age, relationship status, membership in a protected class, or even that they are expecting a baby in eight months. Although you may not ask those questions in an interview, you could still face allegations of discrimination by an applicant who could allege that such information, obtained by you from the internet, was the basis of your refusal to hire. 81 PA Bar Assn. Quarterly 69.

As noted above, many employees post personal messages on the internet every day, “my boss is a jerk”, “I am underpaid”, “the equipment provided by my employer stinks”, etc. An em-ployee may even post photos of equipment or conditions taken with their personal cell phones with comments like “do you be-lieve this!!!” Meanwhile, other employees often join in the online discussion adding their own comments. Again as noted above, these are likely not things an employee would say or do in the work environment but the af-fect is the same. While most em-ployers understand how to ad-dress inappropriate conduct that occurs on the job, they are often confused about how to address disparaging or inappropriate online behavior by employees.

Recent cases have primarily ad-dressed an employee’s termina-tion following the employer’s discovery of online communica-tions that an employer found to be objectionable. The National Labor Relations Board recently settled the matter In re American Medical Response on undisclosed terms but with a press release on February 8, 2011 that stated in part: “The [National Labor Rela-tions Board] NLRB’s Hartford regional office issued a complaint against American Medical Re-sponse of Connecticut, Inc., on October 27, 2010, alleging that the discharge violated federal labor law because the employee was engaged in protected activity when she posted the comments about her supervisor, and re-sponded to further comments from her co-workers. Under the National Labor Relations Act [NLRA], employees may discuss the terms and conditions of their employment with co-workers and others.” Under the terms of the settlement the company agreed to revise its overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees to ensure that the company does not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”

Like most other states, Pennsylvania’s “at will” employment doctrine allows termination of an employee for any reason or no reason, however, the at will doctrine does not permit an employer to terminate an employee in violation of local, state, or federal laws such at the NLRA, Title VII, and others.

What Should an Employer Do About Social Media?

A properly written policy that fits your business is essential. Your policy should address the unique matters of your particular business while not infringing on the protected rights of the employee. Your policy should consider all aspects of the employee relationship - hiring, managing, terminating. Acceptable social media guidelines may include terms that reinforce good manners and respect for others, prohibit public disclosure of private facts or photos which can be very hurtful on a personal level and may be actionable by the victim, and prohibit public disclosure of confidential or proprietary company information. Your policy should not include a blanket prohibition of online communications about working conditions and work related complaints as they may be protected as outlined above but your policy can
and should include a grievance procedure for addressing employee complaints. An effective
grievance procedure will give the disgruntled employee a way to address their issues without the employee’s need to resort to online outbursts. Employees given a venue to express concerns and be heard within the company are less likely to use the World Wide Web to complain about your business.

A written policy will help foster responsible online behavior and provide the basis for employee expectations. Once your Social Media policy is completed be sure to include
employee training and acknowledgement in your implementation plan.

As always, having a policy doesn’t mean you are bullet proof against claims. When issues arise a case by case analysis is prudent to discern if employee comments are somehow protected under law. When in doubt, review events with legal counsel.

Questions about this article
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Need help getting started with your Social Media Policy?

A written policy provides you, your supervisors and staff with the guidelines needed to manage day-to-day operations consistently. Tying your Social Media Policy to your existing employee handbook and operations procedures makes starting this project more manageable. For example, your policy on professionalism could include language regarding expected behavior in use of social media outlets. Your anti-harassment policy could include reference to social media bullying and reinforce respect and the value of good working relationships.
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