Study Finds Evidence of Unlawful Discrimination in Using Social Media to Recruit Employees

Social Media on ChalkboardA recent article in the Wall Street Journal (reported on 11/21/2013 by Jennifer DeVries) discussed a study showing bias in the hiring process when social media is used to screen job applicants. Because of the potential for unlawful discrimination and losing out on otherwise qualified job applicants, the article and study should be a "must read" for every human resource professional or anyone with hiring responsibilities.

Social Media, Recruiting, and Unlawful Discrimination 

In the study, researchers at Carnegie Mellon created four distinct Facebook profiles. The content for each profile corresponded to a Christian, Muslim, heterosexual and a straight male. The researchers then created resumes corresponding to the fake profiles, except the resumes did not contain any non-professional content (i.e., nothing relating to religious beliefs or sexual orientation). These resumes were then sent in response to 4,000 job postings across the U.S. The researchers then were able to track social media searches of the "applicants" and compared these searches to the rate the applicants were contacted for an interview.

The researchers found that the Muslim "applicant" fared the worst in terms of being called in for an interview. The starkest contrast came from the 10 most Republican leaning states where Christians received 17.3% calls for interviews but Muslims recieved only 2.3% calls. As to the gay and straight "applicants," the straight "applicant" faired slightly better than the gay "applicant." However, the difference was not as pronounced as between the Christian and Muslim "applicants.       

Best Practices for Lawfully Using Social Media in Recruiting Employees 

The results of this study provide additional confirmation for recommendations my law firm has provided to business clients and HR professionals for years. For example, in February 2012, I presented to HR professionals and warned against the potential for unlawful discrimination in using social media to screen job applicants. See The Intersection of Social Media & Employment Law: The Good, the Bad, and the Confusing.

Some additional best practices for limiting claims of unlawful discrimination against your company's use of social media searches of job applicants are as follows: 

  • First, if your company is going to use social media in its hiring process then it is important to have a written plan that covers how, when, and what social media will be used. Applying the findings of the above study and to reduce the potential for being accused of unlawful discrimination in the hiring process, employers should resort to social media searches until after a candidate is interviewed. This makes it less likely that your company can be accused of denying an applicant an interview because of a protected characteristic discovered in reviewing the applicant's social media profile.
  • Second, it is also important for employers using social media in recruiting to be consistent: If your company elects to use social media in your hiring process, make sure HR or managers are conducting the same searches at the same point in the process for every applicant. And be sure to keep records of what is reviewed, especially any posts or information that raises questions about a job applicant's candor, professionalism, or judgment.
  • Third, for Michigan employers using social media research in the hiring process it is important to understand what is and is not permitted under Michigan's Social Media Statute applicable to social media accounts of employees and job applicants. I was previously interviewed about this statute and provided best practices for complying with it, which are at this link Employer Recommendations for Complying with Michigan's Social Media Password Law.

For more information about creating or updating your company's social media policy, as well as complying with federal and Michigan employment law, contact Jason Shinn. Mr. Shinn is a Michigan employment attorney who regularly assist employers and HR professionals in responding to employment law challenges, including responding to state and federal EEOC charges of discrimination and, if necessary, litigating such matters.

Social Media Rant by Employer Results in Retaliation Claim Added to Pending Litigation

Facebook and social media policiesThe recent termination of an employee (Adria Richards) after she tweeted her displeasure at off-color jokes told by certain fellow attendees at an industry conference she attended on behalf of her employer has resulted in a lot of good discussion (see here and here for examples) about the increasing intertwining of social media and employment legal issues. 

But employees are not the only ones that face unintended legal consequences when it comes to using social media. Consider for example the results of a president of a chain of bar and restaurants who took to social media - blogging and Facebook - to expound on Karma and an employee being a "b**ch" and asking for the strength to not kill another employee after a wage and other employment lawsuit was filed. Unfortunately, this rant was made while litigation was pending against the employer.  

Specifically, a court allowed the plaintiff employee to amend her Fair Labor Standards Act claim (PDF)to add a claim for retaliation. The plaintiff alleged that after her FLSA claim was filed the defendant's president posted an entry on a blog maintained on the Coyote Ugly Saloons' website and this posting was in retaliation for having engaged in activities protected by the FLSA. The blog posting reads as follows: 

This particular case will end up p*ssing me off cause it is coming from someone we terminated for theft. I have to believe in my heart that somewhere down the road, bad people end up facing bad circumstances! I have been reading the basics of Buddhism and am going to a class on Monday. The Buddhist way would be to find beauty in the situation and release anger knowing that peace will come. Obviously, I am still a very new Buddhist cause my thoughts are f***k that b*tch.

The subject of the post had been reinstated by the time the blog post was published. Making matters worse, another supervisor allegedly posted on Facebook (when drunk) about another plaintiff who was still employed but had joined the suit: ”Dear God, please don’t let me kill the girl that is suing me . . . . that is all ....”

It isn't hard to imagine God and Buddha laughing together at the expense of the Coyote Ugly.  

The Take Away for Employers

The Buddha probably would be the first to say that this president has a long way to go on the Eight Fold Path (a central concept in Buddhist doctrine). And most, if not all, lawyers would be the first to tell an employer and its management to "shut up" when it comes to talking about employment lawsuits, or more eloquently advise companies not to discuss any pending employment related litigation outside of key management personnel. Not only is this zone of silence essential for protecting confidential attorney-client communications, but it is also critical to avoid what happened to the Coyote Ugly employer: The pending lawsuit got even uglier as a result of these social media diatribes in that it gave the plaintiff employees a retaliation claim to pursue in addition to the FLSA claim.   

Additionally, employment counseling and education is a critical component for avoiding or mitigating against employment discrimination and related claims. Equally important is incorporating a non-retaliation mentality throughout the company that must be drilled into management. At a minimum, an employer's position that retaliation will not be permitted should be reduced to provisions in the employer's policies and handbooks as well as made clear to managers.

As far as social media policies go, this case and similar instances concerning issues at the intersection of the employment and social media law make it clear that companies need to have a well-thought out and meaningful social media policy in place that balances both the legal compliance and business needs of the equation.

And in light of this particular case, perhaps that social media policy needs to include a provision to the effect that employees and managers should "exercise caution if you use social media to discuss work issues while drunk."

Not a Good Mix - Fishing Expeditions, Social Media, and Employment Discrimination

FishingNet.jpgFor many, sharing on Facebook, Twitter, Linked In, and other social media-related websites is a daily routine. But what happens to that routine when a person becomes involved in litigation? This is a question that almost always has to be answered in the context of employment discrimination lawsuits.  

The answer to this question, however, will often depend on the circumstances. This point recently played out in a lawsuit filed by a former employee based upon her race as well as a hostile work environment and retaliation (Potts v. Dollar Tree Stores, Inc., Mar. 20, 2013 under under Title VII of the Civil Rights Act of 1964 (as amended, 42 U.S.C. § 2000e et seq.) and the Equal Pay Act (29 U.S.C. § 206). 

This lawsuit is still ongoing, but an interesting issue on the issue of social media was recently decided by the trial judge in the litigation phase called "discovery." Discovery in litigation refers to the phase where parties are permitted to obtain - through written questions, requests to produce information such as documents or digital information, or through deposing a person.

Discovery is intended to be broad and allows a party to obtain "discovery regarding any nonprivileged matter that is relevant to any party's claim or defense" or that is "reasonably calculated to lead to the discovery of admissible evidence." 

Relying on the broad scope for discovery, the defendant employer sought access to a number of areas and filed a motion to compel Plaintiff to produce the following:

  • Any relevant documents maintained on any computer in Plaintiff's possession or control including those documents and/or emails stored in any online email account, such as Plaintiff's Yahoo! or AOL accounts;
  • Any computers or digital storage devices used by either Plaintiff during and after her employment with Defendant;
  • Emails that pertain in way to this lawsuit;
  • Documents, photographs, or other information concerning Dollar Tree stores or Plaintiff's claims;
  • Any non-privileged communications or documents exchanged between Plaintiff and Trowery;
  • Facebook and/or other social media data;
  • Plaintiff's complete tax returns and all attachments thereto from 2007 to the present; and
  • Plaintiff's application and other materials submitted to the Social Security Administration in connection with her claim for disability benefits.

While Plaintiff produced some information, she contended that her former employer was not entitled to full access to Plaintiff's Facebook pages. In deciding the issue in favor of the plaintiff, the trial judge first noted that the Sixth Circuit (the jurisdiction that Michigan is in) had to to rule on the scope of discovery of private Facebook pages, but other courts have concluded:

[M]aterial posted on a private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy.  Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather ... there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff's Facebook account.

Production of plaintiff's computer was a different story. Specifically, the Court concluded that information stored on the computer could lead reasonably lead to the discovery of admissible evidence and, therefore, would be produced. But that production would take place with court restrictions that included using a third-party neutral to conduct the computer search, which would based on agreed upon key words to assess whether Plaintiff's computer contains relevant information.

The Take Away

The Potts case is not a binding decision for Michigan employers and employees. But it is a good reminder for both that it is not going to be a good day in court if your judge believes your employment discrimination strategy involves a "fishing expedition" to "rummage" through the opposing party's digital drawers. 

It is, therefore, important to carefully consider what information you will ask a plaintiff or defendant to provide. This consideration needs to further drill down to the rational basis for asking for such information and being able to articulate a reasonable explanation for why a particular social media repository is likely to be a legitimate source of production relative to the litigation.      

But as the Potts case illustrates, it is mistake to assume that just because discovery is supposed to be "broad" (which often is one of the laziest cliché in all of law) that you'll be able to get away with pursuing a digital fishing expedition. 

And even if you could, casting a wide discovery net in litigation can be costly. Consider that even a single laptop, an email account, and one or two social media accounts will often yield gigabytes of information that will require attorney time to review and process it. On top of this, you'll often end up paying all or some of the cost for a computer forensic specialist to conduct the review. This means that if discovery is not intelligently planned you'll end up with a very expensive fishing expedition with no guaranteed substance to show for it.  

Employer Recommendations for Complying with Michigan's Social Media Password Law

Michigan employers started 2013 with a new employment law. This new regulation was signed into law by Gov. Snyder on December 27, 2012 and is called the Michigan Internet Privacy Protection Act. Readers of this blog know that I have not been a fan of this new employment statute since it was first proposed (see here and here for past discussions as to why this regulation was not good for employers or workable as origianally proposed). However, after sharing these criticisms with the legislator who initially proposed this legislation, a number of exemptions were added, which at least make the Michigan Internet Privacy Protection Act tolerable and workable when it comes to the workplace.  

Generally speaking, this new statute broadly prohibits employers from: 

  1. Demanding their employees or job applicants to turn over passwords to social media or other Internet related accounts, e.g., Facebook, LinkedIn, Gmail or similar accounts. This restriction also precludes employers from asking employees or job job applicants to log into such accounts and then allowing the employer to peruse through the social media account.
  2. Making an adverse employment-related decision with respect to any employee or job applicant who refuses to turn over log-in information.

For a more thorough overview of Michigan's Internet Privacy Protection Act, see the short video interview I gave on this new statute. I explain the basics of the law and offer up a few critiques. 

Employer Considerations In Response to the Michigan Internet Privacy Protection Act 

After reviewing the interview, there are a number of "best practices" employers will want to make sure are in place with respect to social media and employment practices, especially in the context of hiring decisions and investigating employee misconduct involving social media.

A few points, however, that Michigan employers should immediately consider in response to Michigan's new Internet Privacy Protection Act include:

  1. It is important all levels of management know and understand what is and is not permitted under Michigan's Internet Privacy Protection Act. This is because the statute provides severe penalties against employers and potentially managers who violate it, including making it a misdemeanor punishable by a fine of up to $1,000.00, as well as giving a private cause of action to the individual who is the subject of a violation along with the recovery of "reasonable attorney fees and court costs."
  2. The Michigan Internet Privacy Protection Act includes a number of exemptions for when employers may lawfully ask for access to an employee social media or Internet account. One very important restriction permits employers to investigate and requiring an employee to cooperate in an investigation if there is information on the social media account of the employee that is necessary to investigate to ensure compliance with applicable prohibitions against work-related employee misconduct. Employers should, therefore, review their existing policies, handbooks, and employee agreements to make sure they are drafted to address and specify work related misconduct issues in order to fall under this potentially broad exemption.

For more information on Michigan's Internet Privacy Protection Act, contact Jason M. Shinn, who regularly represents companies and individuals in responding to workplace privacy and federal and Michigan employment laws and regulations.

 

Proposed Michigan Social Media Law Banning Employer Access to Employee Passwords - Not Something to "Like"

Facebook Like.jpgProposed Michigan Social Media legislation is back in the headlines. Specifically, Chris Gautz of Crain's Detroit Business reported that Michigan Senate House Bill 5523, (sponsored by Rep. Aric Nesbitt, R-Lawton), was approved unanimously by the House in September and is now sitting on the Senate floor. 

This bill would "outlaw" employers from requiring employees and prospective hires to turn over their passwords to social networking sites, like Facebook, as a condition of employment.

Michigan Proposed Legislation Banning Employers from Accessing Employee Social Media Sites 

This post previously reported about (and criticized) this proposed legislation banning employers from asking employees and applicants for their social media passwords.

Under the proposed legislation, employers would be prohibited from (1) requesting an employee or applicant to disclose access information associated with a social network account, and (2) from discharging, disciplining, failing to hire, or otherwise discriminating against an employee or applicant for failing to disclose access information.

The problem, however, is that this really is not a problem. 

Legislative Solutions Still in Search of a Problem?

I offered a number of criticisms that are worth reviewing and reasons why employers should be concerned about this proposed legislation, e.g., employers found in violation of the act would be guilty of a misdemeanor and subject to imprisonment up to 93 days and/or a maximum fine of $1,000.

These criticisms and concerns still exist. But what I've found interesting about this proposed legislation is the scant evidence suggesting that it is even needed. And the actual genesis for this proposed legislation is even less compelling: It originated on hearsay and the reasoning that other states were enacting similar legislation so Michigan should too. In this regard, Crain's Detroit reports:  

The impetus for the bill, Nesbitt said, came from constituents in his district that had heard about such practices going on in other states and asked him to work to make sure it could not happen in Michigan. He said other states, among them Maryland and Illinois, have been working on similar policies.

Certainly these are good intentions, but such intentions should not substitute for reason when it comes to imposing additional regulations on employers, especially regulations that impose criminal sanctions. 

Instead, the question that should be asked is whether employers asking for social medial password information of employees or applicants is an actual problem in Michigan. The answer appears to be "no."

Consider the following from the Crain's Detroit article: 

  • Mary Corrado, president and CEO of the Livonia-based American Society of Employers, said her organization does background checks for member companies, and social media passwords have not been requested before.
  • Charlie Owens, state director of NFIB-Michigan, said his members largely felt it [asking for employee passwords] wasn't something they would need to do anyway.

Closing Thoughts from the Soapbox

I certainly applaud Mr. Nesbitt and other stakeholders who are looking to protect Michigan employees and to maintain a productive workplace environment that respects individuals. But my experience in working with employers and employees is consistent with the preceding conclusions that employers demanding access to social media accounts of employees and job applicants is not something that is taking place. And there are any number of reasons why this would be a bad idea: Requiring Employees or Job Applicants to Turn Over Facebook Passwords? Three Reasons Why This is a Horrible Idea

However, there are circumstances - which the proposed legislation does not allow for - where it may be appropriate for an employer to ask for access to an employee or job applicant's social media account: 

  • Investigating customer complaints or complaints of workplace harassment or discrimination may require access to an employee's social networking account; or
  • An employer may feel the need to review an employee or job applicant's social networking account if a position involves working with children or vulnerable populations like the elderly.

At the end of the day, employers that do decide to incorporate a measure of social media due diligence into hiring and employment decisions need to have in place the proper procedures for complying with existing and evolving obligations that already cover social media. But we don't need to add to the list of regulations.    

NLRB Finally Delivers Knockout Blow to Broad Employer Social Media Policies

Knockout.jpegIn what has been perhaps the most telegraphed wind-up punch to hit employers in some time, the National Labor Relations Board (NLRB) has finally weighed in on the issue of employer social media policies. 

Specifically, on September 7, the NLRB issued its Order striking down Costco Wholesale Corporation’s social media policy and related electronic posting employee policy. The Costco decision has been a long time in the making with the actual time line as follows: 

  • On August 2011, the NLRB's acting General Counsel Lafe Solomon first signaled that the NLRB would be entering the fray of employment and social media fray back when the NLRB's first social media report was issued. The NLRB's August Social Media report is available here.  

If there was any doubt as to what direction the actual NLRB would take when it came to employer social media policies, the Costco decision put that doubt down for the count when it invalidated Costco's social media employee policy found in its handbook that prohibited employees from making statements that “damage the Company, defame any individual or damage any person’s reputation.” 

What Does the NLRB's Striking a Company's Social Media Policy Mean for Employers

For employers and HR professionals, the NLRB's full body of work pertaining to employer social media policies is worth analyzing. But employers should definitely take away the following from the NLRB's decision to invalidate Costco's social media policy:

First, Section 7 of the National Labor Relations Act applies to all employees—unionized and non-unionized—the right to engage in protected “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  A broad employer social media policy that comes within an area code of infringing or discouraging employee rights under Section 7 of the NLRA exposes the employer to coming under fire from the NLRB. 

In this regard, the NLRB was specifically critical of Costco’s social media policy because it “does not present accompanying language that would tend to restrict its application.”

This brings up the second take-away; Employers should include a "savings clause" or express disclaimer that protected Section 7 communications are excluded from the employer's social media policy - no matter how broadly the policy may be read.

While not a silver-bullet, a "savings clause" or exclusionary clause carving out Section 7 rights from an employer's social media policy was specifically lacking in Costco's policy. 

Indeed, there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule ... [Costco] does not present accompanying language that would tend to restrict [the social media policy rule's] application. 

Accordingly, a provision carving out Section 7 rights from an employer's social media policy would tend to put employees on notice that the policy's application is not intended to inhibit protected employee activity under Section 7, which include rights to unionize, collectively bargain, and strike.

Next Actions for Employers When it Comes to Social Media Policies

Both union and non-unionized employers need to be prepared to avoid round two now that the NLRB's stance on social media policies is firmly established as set forth in the Costco decision. Accordingly, employers should carefully review their social media policies and employee policies to ensure that they do not contain “broad” prohibitions that are unlikely to survive NLRB scrutiny.

$4.5 Million Reasons for Employers and Individuals to Balance Social Media Use & Risks

Balancing Stones.jpgA previous post on this blog discussed ways for employers to increase the effectiveness of a company's social media policy (See The Sweet-spot for Increasing the Effectiveness of a Social Media Policy: Employee Self-Interest).

One of the real-world examples discussed in that post was a lawsuit against a former Michigan Assistant Attorney General Andrew Shirvell that arose out of Mr. Shirvell's use of social media. As explained below, on August 16, 2012, a jury returned a verdict in this case (it did not turn out well for Mr. Shirvell).  

Specifically, Andrew Shirvell was fired as a Michigan assistant attorney general, mocked (quite brilliantly) on the Daily Show, and eventually sued in federal court for using social media (blogging) to chronicle his obsession over a former student body president at the University of Michigan, Chris Armstrong.

Mr. Armstrong is openly gay and Mr. Shirvell, a self-described "right-wing guy," started the "Chris Armstrong Watch" blog. On his blog, Mr. Shirvell repeatedly blogged about Mr. Armstrong, including post that he was promoting a "radical homosexual agenda" and referring to Mr. Armstrong as a "gay Nazi."

While almost no one (thankfully) would sympathize with a Nazi - gay or otherwise - a jury felt equally unsympathetic toward Mr. Shirvell and his actions; On August 16, 2012, a jury returned a verdict against Mr. Shirvell in the amount of $4.5 million in the lawsuit filed by Mr. Armstrong.

Employer and Employee Liability for Social Media Misconduct

For both employers and individual employees, this jury's $4.5 million verdict is a stark reminder that social media continues to expand the liability for both and there are real-life consequences if it is misused. 

While the lawsuit against Mr. Shirvell did not involve his former employer (he was, however, fired in response to his social media escapades), employers should still take notice that they need to be prepared to take appropriate action if they learn that an employee may be inappropriately using social media, including against a co-worker.   

On this point, case law is not always consistent when it comes to when and under what circumstances an employer may be liable for an employee's social media misconduct, but such liability increasingly happens.

For example, Jon Hyman provides an excellent discussion of a lawsuit arising out of employees who started an anonymous blog that focused in a very offensive and derogatory manner on a co-worker, Ralph Espinoza. See 820,000 Reasons to Have a Social Media Policy. After Mr. Espinoza learned of the blog, he complained to management, who did little other than asking employees to put the blog to rest, but it continued for approximately eight weeks. A jury awarded Espinoza $820,000 for the harassment.

Take-Aways - Employee Social Media Misconduct is Still Misconduct 

From a practical perspective, it is unrealistic for employers to monitor all possible social media to detect potential derogatory or defamatory postings by employees.

But if the employer does become aware (i.e. the offended employee complains to management a co-employee posted something discriminatory or offensive or a competitor, client, or customer makes a similar complaint about a potentially offensive post), the employer must treat potential social media related misconduct like any other investigation into employee misconduct. 

It is important, however, that such social media related investigations are conducted in collaboration with experienced legal counsel because of the conflicting obligations and policy considerations that employers must balance.

For more information about the challenges employers face when it comes to balancing social media employment related risks, see The Intersection of Social Media & Employment Law: The Good, the Bad, and the Confusing (which includes a link to presentation materials).  And for additional information about conducting employment investigations or other employment law issues, contact Jason M. Shinn

Michigan Proposes Legislation to Ban Employers from Accessing Employees' Social Media Sites

Facebook.jpgMichigan recently joined a growing trend of states that have introduced legislation to prohibit employers from asking job applicants and current employees for passwords and other private account information for social networking websites such as Facebook and Twitter.

Specifically, State Rep. Aric Nesbitt (Republican) proposed legislation that applies to state and private employers. Mr. Nesbitt's legislation also prohibits educational institutions from asking for private account information, and penalizes them for dismissing or failing to admit a student who does not provide such details.

Michigan employers should have a number of concerns if this legislation were to be enacted.

First, Michigan employers would be prohibited from: 

  • Requesting an employee or an applicant for employment to disclose access information associated with the employee's or applicant's social networking account.
  • Discharging, disciplining, failing to hire, or otherwise discriminate against an employee or applicant for employment for failure to disclose access information associated with the employee's or applicant's social networking account.

Second and incredibly, an employer who violates the proposed legislation would be guilty of a misdemeanor punishable by imprisonment for not more than 93 days, a fine of not more than $1,000.00, or both.

Third, an "employer" is broadly defined to mean "a person ... engaged in a business, industry, profession, or other enterprise in this state and includes an agent, representative, or designee of the employer." Thus, any manager, HR professional, business owner, etc. who asked an employee or job applicant for log-in information would be facing these stiff penalties. 

Fourth, an employee or job applicant who is the subject of a violation of the proposed legislation may bring a civil action for that violation and may recover actual damages or $1,000.00, whichever is greater.

Additionally reasonable attorney fees and court costs (as if the misdemeanor is not bad enough) are also available to plaintiffs.

Criticisms of Proposed Employer Ban on Accessing an Employee's Social Media

There is no shortage of statutes and regulations that apply to the employment relationship. And as previously noted by this blog, employers already have a number of reasons for not requiring employees or job applicants to provide access to their social networking information.

But even if I were convinced that companies need another employment statute imposed upon them, this proposed statute is not it.

Consider for example that there are no exceptions available to employers for requiring access to an employee or job applicant's social networks. It is certainly not difficult to come up with circumstances where an employer should be able to bypass this statute: 

  • Investigating customer complaints or complaints of workplace harassment or discrimination may require access to an employee's social networking account; or
  • An employer may feel the need to review an employee or job applicant's social networking account if a position involves working with children or vulnerable populations like the elderly.

And imagine the litigation landslide this statute would create. It would begin with a single accusation that a manager requested an employee for his or her Facebook password. With that accusation, an employee or job applicant has a ready-made lawsuit complete with a provision for the recovery of attorney fees (but only the reasonable kind) hanging over an employer along with potential criminal charges.

An attorney could make a rich career just on the settlement value of these claims .... hmmmm. Time to rethink the focus of my law practice. Thanks. Mr. Nesbitt.    

Requiring Employees or Job Applicants to Turn Over Facebook Passwords? Three Reasons Why This is a Horrible Idea

Facebook 2.jpgIncreasingly, employers are asking prospective or current employees to turn over their Facebook passwords in order to review their profiles.  

In response to this increase some states, including California, Illinois, and Maryland, have proposed legislation to ban such conduct. 

Facebook recently interjected its position on this topic when its Chief Privacy Officer, Erin Egan, noted on the company blog that:

This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.

Ms. Egan further notes what this blog has repeatedly warned employers about - reviewing an applicant's Facebook profile raises a number of legal issues and may open the employer up to discrimination claims. Facebook's blog post notes:    

We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do. But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person.

Three Reasons Why Asking Current Employees or Applicants for Facebook Information is a Horrible Idea 

  • A precursor to a Discrimination Lawsuit?

As noted above, this blog has repeatedly cautioned employers about the legal risks created by using Social Media to screen applicants. In sum, when it comes to making employment decisions, employers must continue to be prepared to articulate a legitimate, nondiscriminatory reason for any employment decision and retain appropriate documentation to support that decision.

But given the treasure trove of information that an employer may learn about an applicant or employee through Facebook or other social media outlets, e.g., race, age, pregnancy status, religion, disability status, etc., an employer is almost asking to have any legitimate, nondiscriminatory reasons for making an employment decision subject to being challenged upon review of a given Facebook profile. 

Think of it this way, an employer would never in the course of interviewing a candidate require a resume to include a color picture of the candidate or ask about a person's age, pregnancy status, race or ethnic background. Yet all of this information and more is readily available through a person's social media profile.

Additionally, employers often overlook or simply are not getting good advice when it comes to compliance with existing employment laws and regulations and implementing a social media employee screening process.  

  • Federal Prosecution, Computer Fraud and Abuse Act Violations, and other Legal Risks  

Employers should carefully note that Facebook has made it a violation of its Statement of Rights and Responsibilities to share or solicit a Facebook password, which may expose employers to a number of unanticipated legal risks.

This means an employer soliciting a job applicant's Facebook password could be liable for violating Facebook's Terms of Use. Where courts have enforced similar terms of use (often called browsewrap agreements) they have been against businesses. See Lemley, Terms of Use, 91 Minn. L. Rev. 459, 472 (2006) ("An examination of the cases that have considered browsewraps in the last five years demonstrates that the courts have been willing to enforce terms of use against corporations, but have not been willing to do so against individuals.").

Further, the U.S. News reported that the U.S. Department of Justice regards it as a federal crime to enter a social networking site in violation of the terms of service.

Building on this point, Courts have previously found in favor of Facebook where parties have exceeded authorization in accessing Facebook site information as a violation of the Computer Fraud and Abuse Act. See Facebook, Inc. v Power Ventures, Inc. (PDF) (2012)

  • Big Brother Has Negative Connotations for a Reason 

Sometimes the best advice a lawyer can give to a client has nothing to do with the law. 

When it comes to asking or requiring a current employee or an applicant to turn over his or her Facebook password my personal opinion is simply this is almost always going to be a bad idea. This opinion has nothing to do with what may be legally acceptable. Instead, it is based on two beliefs:

First, I simply have a fundamental belief that some minimal level of privacy should be afforded by an employer to an employee or job applicant. Certainly there may be circumstances where this respect needs to give way to a competing and compelling interest. But absent such circumstances, what is the need to peruse a person's private Facebook profile?  

Second, asking or requiring an employee or applicant's social media log-in information reminds me of the fictional character "Big Brother" from George Orwell's novel 1984. In that novel everyone was under complete surveillance by the authorities. Against this backdrop, is this the setting an employer wants to create for its employees? 

Conversely, is this the setting that is going to attract the best candidates? For example in Jason Yormarck's blog post "Asked For Your Social Profile Passwords In An Interview? Look The Other Way notes: 

Asking for your Facebook login is probably a pretty clear sign of a company that is not going to be pleasant to work for anyway ... it’s a cop out for having to do real work to determine if a candidate is a good fit.

Conclusion

Implementing a social media policy to screen applicants or current employees can be done with the proper planning. And because of the number of legal pitfalls, such planning must include the assistance of experienced legal counsel.

But before seeking such counsel, employers should ask if such a policy makes business sense in the first place. In answering the question, it is likely that there are few circumstances where forcing a job applicant or current employee to share with his or her employer Facebook or social media log-in information as a condition of employment makes sense.   

Of Muppets and Men - How Will Your Goldman Sachs Social Media Nightmare be Told?

Caution Tape.jpgOne general misconception that business owners have when it comes to social media policies is that it is a silver bullet against disgruntled employees disparaging the company. Certainly this is a serious concern for any employer. But a recent "parting gift" from a Goldman Sachs Vice President illustrates the real danger that social media poses to the business - you simply cannot control the message.

As explained below, it is, therefore, more important for companies to focus on drafting the story that will be told rather than focus on preventing the message. 

The Goldman Sachs Muppet Debacle

It appears that Greg Smith, a former Vice President of Goldman Sachs Group Inc., single-handedly caused Goldman Sachs lose $2.15 billion (yes, billion) of its market value. This loss happened after Mr. Smith's highly critical editorial appeared in the for the New York Times detailing Goldman and its Chief Executive Officer Lloyd C. Blankfein’s treatment of clients as nothing more than cash cows.

An excerpt from the New York Times piece highlights this scathing analysis:  

To put the problem in the simplest terms, the interests of the client continue to be sidelined in the way the firm operates and thinks about making money.

* * *

It makes me ill how callously people talk about ripping their clients off. Over the last 12 months I have seen five different managing directors refer to their own clients as “muppets ...”

The Response by Goldman Sachs 

The Wall Street Journal reported that in a memo to employees of Goldman Sachs employees, its Chairman and Chief Executive Lloyd C. Blankfein and President Gary D. Cohn response essentiall boiled down to two elements:

  • Mr. Smith was one "of nearly 12,000 vice presidents" among more than 30,000 employees at the company;" and 
  • Mr. Smith's assertions do "not reflect our values, our culture and how the vast majority of people at Goldman Sachs think about the firm and the work it does on behalf of our clients." 

The complete Goldman Sachs memo is available here.

Analyzing Goldman Sachs' Response - Is it Convincing? 

First, Goldman Sachs avoided the mistake of offering a My Cousin Vinnie response to the public relations debacle. Specifically, there is scene where Joe Pesci's character responds to the prosecutor's opening statement: "Uh... everything that guy just said is bullsh*t... Thank you." While this classic line garners laughs, it does little to offer convincing support for your position.

But instead, of taking this approach, Goldman Sachs responded that its leadership team had implemented policies and procedures to promote and ensure that employees have opportunities to resolve company concerns like Mr. Smith raised. The fact is that when a current or former employee - disgruntled or not - feeds the media with a story like Mr. Smith's, management will want to quickly demonstrate that the company's process and culture inside the company is perceived as "fair" and reasonable.

Building on the preceding point, Goldman Sachs also noted that there was no record that Mr. Smith ever elected to use such policies to voice the concerns raised on his way out the door and through a very public medium.

With both the policy and Mr. Smith's apparent failure to use it, Goldman Sachs is in a better position to turn the microscope back onto Mr. Smith and question his motives. For example, why did Mr. Smith see fit to enjoy whatever perks, bonuses, and compensation came to him during his 12 years with the company yet make a public issue of his concerns on his way out the door. He may have had compelling reasons to do so, but the focus is no longer exclusively on Goldman Sachs because Mr. Smith is now in a position where must explain himself.   

It is important to note, however, that to make the preceding point credible, there must be a company culture where employees are expected to raise questions and concerns. On this point, however, Mr. Smith points to a number of specific issues that make Goldman Sachs look guilty of the cultural lapses described by Mr. Smith and far from the type of  anti-Goldman culture that exist at other investment firms.  

Third, one criticism I have about Goldman Sachs' response is its attempt to minimize Mr. Smith's tenure by noting that he was only one of 12,000 vice presidents in a company with 30,000 employees.

For me, this is a valueless piece of information in that it does nothing to address the issues raised. In fact, it calls into question how much authority or opportunity Mr. Smith actually had to realistically exert any influence over the culture and issues he described. After all, having the title of "vice president" in a company where approximately 2 out of every 5 employees have such a title speaks more to title inflation rather than the type of true leadership function required to change culture.      

Concluding Thoughts

Not every departing employee will have the opportunity to aire their grievances about an employer on the editorial page of the New York Times. But with the ubiquity provided by social media, stages like the New York Times are no longer required to reach a large audience.

And when it comes to social media, no employer will ever be able to control what current or former employees have to say. And under certain circumstances, such an attempt may violate applicable laws, such as under the National Labor Relations Act.

For these reasons, employers should certainly strive to have a better response than Goldman Sachs offered. But in order to do this, up-front planning is required. Part of that planning includes implementing internal policies and procedures that will promote a company's culture and organizational goals. And a social media policy should be an extension of both. At this point, employees should understand and be dedicated to those preferences.

Your Thoughts

I don't have any first-hand insight as to the culture at Goldman Sachs or Mr. Smith's assertions or his motivations. But I would be unlikely to ever become a Goldman client based on Mr. Smith's critique. Do you think, however, Goldman's response offers a compelling reason to revisit this assessment? 

The Intersection of Social Media & Employment Law: The Good, the Bad, and the Confusing.

Social Media Scrabble.jpgOn February 6, 2012 I had the opportunity to speak to human resource professionals about legal issues at the intersection of social media and employment law. This HR group is lead by the B2B Connection and its president Gail Sanderson. A special thanks is also owed to Molly DiBianca over at the Delaware Employment Law Blog for her permission to use her posts about social media employment legal issues (Molly has a wealth of information that is definitely worth referencing).  

It was a great turn-out and the group's collective knowledge and insight greatly added to the discussion. If you are a human resource professional in the Metro Detroit area, I would highly recommend you contact Gail Sanderson about joining her HR group and joining the LinkedIn group I moderate, Michigan HR Toolbox (would love to have you join the discussion). 

As to the presentation, HR and Social Media: The Good, the Bad, and the Confusing, it focused on an overview of the risks created by social media for employers, applicants, and employees. The presentation concluded with an overview of "best practices" and practical recommendations for minimizing social media risks.

If you would like a copy of the presentation, complete with links to materials referenced in the discussion, complete this minimalist contact form and reference "social medial presentation" in the notes section.  

Here are a few highlights from the discussion: 

  • Hiring Decisions: I don't know if it is accurate to say that social media is a "new" technology, but it does create new wrinkles on old HR issues. Even so, when it comes to making employment decisions, employers must continue to be prepared to articulate a legitimate, nondiscriminatory reason for any employment decision and retain appropriate documentation to support that decision. This reminder is particularly important given the treasure trove of information that an employer may learn about an applicant or employee, e.g., race, age, pregnancy status, religion, disability status, etc.
  • Employment Decisions & Social Media Record Keeping Requirements: Building upon the preceding point, if social media information is used in making an employment related decision, e.g., hiring, promotion, termination, etc. then employers and their HR professionals must be mindful of the Equal Employment Opportunity Commission’s (EEOC) record keeping regulations. The EEOC's regulations generally require that “any personnel or employment record made or kept by an employer…shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later….Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General,…the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or action.” 29 C.F.R. §1602.14. There are also similar requirements under the Age Discrimination in Employment Act. See 29 C.F.R. § 1627.3.
  • Review existing policies (and if you don't have one, get one): As previously discussed in various posts on this blog, the National Labor Relations Board (NLRB) has put a lot of attention on scrutinizing employers' social media policies, especially non-union employers (see NLRB Releases Second Social Media Advisory Report: What It Means for Employers ) and Social Media and the NLRB: Two Must Read Reports for Employers and HR Professionals). This NLRB scrutiny is one reason why employers must have a carefully and artfully drafted social media policy in place. Equally important (if not more so) employers must make certain that discipline and termination decisions arising out of social media (think Facebook rants) are not going to inadvertently violate an employee's rights under applicable employment laws and regulations, including the National Labor Relations Act (NLRA). 

For more information on employment law and social media issues, including steps for minimizing your social media legal risks, please see information about our employment law services and contact Jason Shinn

NLRB Releases Second Social Media Advisory Report: What It Means for Employers

Social Media on ChalkboardOn January 25, 2012, the National Labor Relations Board's General Counsel issued a press release that a second report describing social media cases reviewed by the NLRB has been made available. The first NLRB social media report (PDF) was released in August 2011.

According to the NLRB's press release, this second NLRB report (PDF) was needed to address emerging social media issues. The NLBR further explained: 

Cases concerning the protected and/or concerted nature of employees’ social media postings and the lawfulness of employers’ social media policies and rules continue to be presented to the Regional Offices ... In addition, these issues and their treatment by the NLRB continue to be a “hot topic” among practitioners, human resource professionals, the media, and the public. 

The NLRB's second report covers 14 cases. Half of those cases involve questions about employer social media policies. It is noteworthy from the employer perspective that five of those policies were found to be unlawfully broad and one was found to be lawful after it was revised.

Broad "Savings Clauses" Excluding Section 7 Rights and Activities Not Good Enough

Employers and HR professionals should definitely read both reports. But one case jumped out at me as particularly important. This is because I'm seeing a number of employers follow a similar approach that the NLRB found to be a violation of Section 7 Rights under the National Labor Relations Act (NLRA) when it comes to drafting social media policies. 

Specifically, page six of the report discusses a case where the NLRB found that an employee's discharge for Facebook comments about the employer was lawful, but the employer's social media policy was not. 

In that case, the employee was reprimanded by a manager and later on the employee's lunch break she updated her Facebook status with a comment consisting of an expletive and her employer's store. She was later terminated for this and similar Facebook comments. Again, the termination was lawful. 

In regard to the employer's social media policy, it provided that when it comes to social networking, employees should generally avoid identifying themselves as employees of the employer unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner. 

This social media policy was found to violate the NLRA generally for two reasons:

  1. First, the social media policy's use of "appropriate" was not defined and it implicitly means that the social media policy prohibited "inappropriate" discussions of terms and conditions of employment.  
  2. Second, and here is where employers should pay particular attention: The NLRB specifically found that a "savings clause" provision in the employer's social media policy did not bring the policy back into compliance with the NLRA.

That savings provision informed employees that the employer's social media policy would not be interpreted or applied so as to interfere with employee rights to self-organize; form, join, or assist labor organizations; to bargain collectively; or to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection. 

Personally, I found the explanation for why this provision did not save the social media policy from violating the NLRA to be unsatisfactory. But the fact remains that drafting a broadly worded social media policy that may prohibit conduct protected by the NLRA only to note that the social media policy will not be applied to violate the NLRA is not going to pass muster under the current NLRB regime.

Employer Take-Aways

Shakespeare is credited with the observation that "the devil can cite Scripture for his purpose." And it may appear that the NLRB will find a social media policy violates an employee's NLRA rights and then selectively look to the employer's policy to support the violation. 

None-the-less, the above case should motivate employers to rethink, rather than double down on drafting broad social media policies that contain ambiguous or poorly defined meanings and expect such policies to pass muster with the NLRB simply because an equally broad savings clause provision carves out Section 7 rights and activities.

If there is a bright spot, the NLRB's increased attention on social media issues is also providing a road map (even if the terrain is not entirely charted out) in the form of cases for employers to follow when it comes to drafting and implementing social media policies.

In that regard, it is important to have a competent "social media legal sherpa" familiar with this dynamic intersection of social media, employment, and labor law. Otherwise employers may find themselves in a nasty collision with the NLRB at this intersection.      

The Best of the Best of the Best - The 2011 ABA Journal Blawg 100

TrophiesThe American Bar Association's 2011 list of Top 100 Law Blogs (I refuse to use "blawg" whenever possible) is out.

It is a list that consist of a diverse group of top-shelf thought leaders who provide equally great insight in their respective areas of expertise. The common thread among these bloggers, however, is the passion and depth of knowledge they have for their blog's subject matter. 

In this regard, you can't go wrong with checking out or following any of the blogs found on the ABA's list. In fact, I came away with a few blogs I will be adding to my list of "must reads" (like The Not-So Private Parts published by Kashmir Hill and focusing generally on privacy law).  

The following blogs, however, are either especially relevant to employment law matters or otherwise are a mainstay in my weekly routine:

  • Connecticut Employment Law Blog published by Daniel Schwartz. Aside from the great content and practical insight on employment law matters in and outside of Connecticut, Mr. Schwartz's blog is what motivated me to start blogging.  
  • Ohio Employer's Law Blog by Jon Hyman. Similar to Daniel Schwartz's blog, this is just a great source of quality information and analysis of legal issues relevant to employers in and outside of Ohio. 
  • The Employer Law Handbook published by Eric Meyer. The creative headlines alone are worth the price of admission. The great content and insight offered to employers is just an added bonus. 
  • Internet Cases published by Evan Brown. This is a super informative blog and a great fix for any technology junkie. 
  • Technology and Marketing Law Blog published by Eric Goldman and Venkat Balasubramani. While this blog generally summarizes cases involving Internet, privacy, copyright and trademark law, the authors provide deep insight and analysis that go way beyond the court opinions discussed. 
  • Delaware Employment Law Blog published in large party by Molly DiBianca. This is a go-to resource for legal issues at the intersection of social media and employment law, as well as "traditional" employment law matters.  

Also, I invariably take away some valuable insight or practical advice from Kevin O'Keefe's Real Lawyers Have Blogs. This value is relevant to blogging in general and frequently professional relationship building.

Additionally, in publishing the Michigan Employment Law Advisor blog, I've been a client of Kevin and his team at LexBlog for a little less than a year. Based on this experience, I definitely encourage any lawyer inspired to make a dent in the law blog universe to strongly consider discussing those plans with LexBlog. They consistently offer text-book customer service and are all around enjoyable to work with.

Disclaimer: None of the preceding authors have compensated me for any of the opinions expressed in this blog post or otherwise promised me anything of value. However, any such reimbursement will be accepted and appreciated.  

Since When are Employee Rants Protected by Federal Law?

 

Briefly, under Section 7 of the National Labor Relations Act (NLRA), employees are guaranteed “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” 29 USC 157. 
It is this last provision that the NLRB and employees have latched onto as a means to protect online rants. It is important for both employers and employees to understand, however, that Section 7 of the NLRA does not protect garden variety gripes - complaints must relate to the rights under this provision.  
The WSJ's article provides a great overview of the difficulties employers and employees face when it comes to parsing out what social media postings are or are not not protected by the NLRA. 
Recommendations 

Social Media Scrabble.jpgToday's Wall Street Journal discussed the increased scrutiny that the National Labor Relations Board ("NLRB") has continued to place on second-guessing employers' terminations of employees who have bad-mouthed their employers and managers through social media outlets like Facebook or Twitter. See Workers Claim Right to Rant on Facebook, by Melanie Trottman.

Briefly, under Section 7 of the National Labor Relations Act (NLRA), employees are guaranteed “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” 29 USC 157.

It is this last provision that the NLRB and employees have latched onto as a means to protect online rants. It is important for both employers and employees to understand, however, that Section 7 of the NLRA does not protect garden variety gripes - complaints must relate to the rights under this provision.

The WSJ's article provides a great overview of the difficulties employers and employees face when it comes to parsing out what social media postings are or are not protected by the NLRA.

Recommendations for Addressing Social Media & Labor Rights

The best course of action for employers contemplating disciplining or firing an employee for a Facebook posting or related social media use is to examine the issue of protected concerted activity under the National Labor Relations with their labor and employment counsel to avoid ending up in the NLRB’s cross hairs. Two additional recommendations to consider:

  • For more information about the NLRB's view of social media employee related discripline, employers and employees should review the NLRB's report detailing the outcome of its investigations into social media policies and firings in relation to the NLRA and the U.S. Chamber of Commerce's comprehensive Report, A Survey of Social Media Issues Before the NLRB.
  • Workplace Technology Restrictions: Employees generally do not have a statutory right to use an employer’s IT infrastructure and e-mail system for Section 7 purposes. Thus, an employer’s technology policy prohibiting employee use of the system for “non-job-related solicitations” will generally not violate the NLRA. It is important, however, that technology restrictions for non-solicitation and non-distribution rules are uniformly applied. This is because it can be argued that an employer violates the NLRA if its policy discriminates along Section 7 lines. In other words, an employer cannot permit employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by anti-union employees but not by pro-union employees. 

For additional information on Social Media and the challenges and opportunities it presents for employers and employees, contact Jason Shinn

Using Social Media to Screen Job Applicants - A Few Recommendations for Employers

Dilbert.com

Certainly social networking sites like Facebook, LinkedIn, blogs, and Twitter provide employers with opportunities to obtain useful, legitimate, and relevant information about a job applicant. But the above Dilbert comic by Scott Adams underscores that there are also risks in using such social media outlets to screen job applicants.  

Specifically, if employers use social media sites to go beyond a job candidate's resume, they may be opening a Pandora's box full of information about an applicant's status in certain protected categories. Examples of such categories include discovering a job candidates' personal attributes such as race, gender, age, marital status, medical condition, religion, pregnancy status, sexual orientation, disability and political affiliation. All of these characteristics may be protected categories under federal or state law. 

But simply because there are risks in using social media does not mean that these sites cannot be valuable tools or that they should never be used for recruitment purposes. Instead, employers who recruit or screen job applicants through social media and other online sources need to understand these risks and develop policies to manage the potential pitfalls.

Recommendations for Using Social Media to Screen Job Applicants 

A few recommendations that employers should consider when it comes to using social media to screen job applicants: 

  • Before initiating an online search (or any search), employers should consider the job description to be filled and evaluate the objective characteristics a candidate should have, e.g. experience and skills. In addition to narrowing the employer's focus on the ideal candidate, this may also help focus the social media screening process. For example, if effective written communication skills is essential to the position to be filled, then scouring the Web for blog postings by the candidate makes sense. But if engineering experience specific to micro-tunnelling is critical to the position, than researching a job applicant's personal likes on Facebook may not make sense.    
  • If screening job applicants through social media will be permitted, then the employer's policy should clearly identify what information or sites will be reviewed, why these sites are chosen, and what records will be maintained (i.e., screenshots, access dates, etc.). It may make more business sense to only visit professional/career orientated sites like LinkedIn as opposed to a more traditional social networking site like Facebook.
  • Employers may use third-party service providers to review social media and social networking profiles to screen job applicants. If so, it is important to understand that they may have obligations under the Fair Credit Reporting Act.  
  • Above all else, it is critical that employers are able to articulate a legitimate, nondiscriminatory reason for any employment decision and retain appropriate documentation to support that decision. This is true for any medium.

These are only a few points that employers should consider in developing a procedure for using social media/social networking to screen potential job applicants. For more information about best practices for screening job applicants through social media, feel free to contact Jason Shinn

Social Media and the NLRB: Two Must Read Reports for Employers and HR Professionals

Targeting Social Media.jpg

It is no secret that the NLRB has put employer's social media policies and employee discipline discharges arising out of social media (a/k/a Facebook Firings) in its cross-hairs.

This fact was recently highlighted in another NLRB Press Release (9/7/11) where an administrative law judge found that a Buffalo nonprofit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.

Similar to the Buffalo matter, NLRB social media claims generally concern an employee termination related to Facebook postings, blogs, and Tweets, as well as social media policies considered to be overly broad by the NLRB.

Several resources have recently been published that highlight these issues and provide assistance to companies and human resource professionals to avoid ending up in the NLRB’s cross hairs when it comes to social media and the NLRA.

First, the NLRB’s Acting General Counsel recently released a report detailing its investigation into cases involving employer’s social media policies and employee’s use of social media. The NLRB Social Media Report (PDF) is a must read for employers.  

Second, the U.S. Chamber of Commerce released a well-written, comprehensive Report: A Survey of Social Media Issues Before the NLRB (PDF). This should also be a must-read report for human resource professionals and employers. 

The Take-away

The prudent course of action if an employer is considering disciplining or firing an employee for a Facebook posting or other conduct relating to social media is to examine the issue of protected concerted activity under the National Labor Relations, preferably with their labor and employment counsel to avoid ending up as the next NLRB press release. 

The Sweet-spot for Increasing the Effectiveness of a Social Media Policy: Employee Self-Interest

Social Media Scrabble.jpgConventional wisdom directs companies to implement social media policy to eliminate or otherwise reduce the risks involved with social media. But a social media policy is only effective if it is followed by a company's employees. And the sweet spot for increasing compliance with such a policy is by showing individual employees why they have equally compelling reasons for exercising care and "best practices" in their personal and professional social media lives.

Consider the following examples:  

  • Andrew Shirvell, a former Michigan assistant attorney general was fired, mocked on the Daily Show, and eventually sued in federal court for for his blogging endeavors. Specifically, Mr. Shirvell published a blog that focused on the former student body president at the University of Michigan, Chris Armstong. Mr. Armstrong is openly gay and Mr. Shirvell blogged that Mr. Armstrong was promoting a "radical homosexual agenda" and referred to him as a "gay Nazi." In discharging Mr. Shirvell, the Michigan AG's office accused him of using his employer provided computer for blogging and Facebook posting and later lying to investigators about it. Mr. Armstrong's suit against Mr. Shirvell (Complaint (PDF) originally filed in state court and removed to federal) asserts claims of defamation, invasion of privacy claims, intentional infliction of emotional distress, abuse of process, stalking, pending in the Eastern District of Michigan.    
  • Dr. Lazar Greenfield, an accomplished University of Michigan surgeon, made headlines earlier this year and later resigned as president elect from a national surgeon's group after his February 2011 editorial suggesting that "semen" was a "better gift" than chocolates for women on Valentine's Day. This editorial and the entire February issue of Surgery News was pulled from the Web after complaints flooded the American College of Surgeons.  
  • A female middle school teacher was discharged in 2010 after photographs of her engaged in a simulated act of fellatio with a male mannequin appeared on an Internet website (Land v. L’anse Creuse Pub. Schs. Bd. of Educ.). These pictures were taken during non-working hours and at a bachelorette party. The discharge was later reversed by the Michigan Teacher Tenure Commission and affirmed by the Michigan Court of appeals, but only after a a prolonged litigation process that was witnessed, at a minimum, by school employees, students, and parents.

These examples are a sobering reminder of the social media legal risks and embarrassment waiting for employers vis-a-vis their employees. There should be no pretense that a social media policy - even a very good policy - will completely eliminate either. It cannot. But by building on the shared interests of the employer and the employee, companies can increase the likelihood that a company social media policy will be followed.

Take-Away

Instead of simply directing individual employees to follow a social media policy in the abstract, make it personal. That is to say, use the above examples to appeal to the individuals' self-interest i.e., show why the policy is intended to help the individual to avoid social media missteps. This will, of course, help the company do the same.

Also, to avoid a situation similar to the Shirvell matter, it is important for employees to understand that employer provided computers and resources are not to be used for non-company related social media activities. 

Two Questions Employers Should Ask Before Implementing A Social Media Policy

iStock_000011909666Small.jpgPeter Drucker noted that "The most serious mistakes are not being made as a result of wrong answers. The truly dangerous thing is asking the wrong questions." 

Mr. Drucker's advice is particularly appropriate when it comes to legal issues involving social media and employees. In this regard, there is no shortage of general "answers" in the form of sites offering sample social media policies (over 170 policies and counting) and even the potential for very good answers in upcoming publications. 

But businesses should not make the mistake of focusing only on legal "answers" when it comes to benefiting from social media. This is because when social media policies and procedures are addressed strictly from a legal/attorney perspective, most businesses end up with a peanut butter solution, i.e., a social media policy to spread evenly over every possible risk and situation under the sun and several contingent provisions in the event the sun fails to rise.

Case in point, the American Institute of Architects (AIA) social media policy warns its employees to:

Be Sensitive to Antitrust Issues: There are stringent requirements by the AIA that you comply with antitrust laws. What’s antitrust? Antitrust laws promote vigorous competition and protect consumers from anti competitive business practices.

Who doesn't know how to comply with antitrust laws?   

This example is not a knock against risk management, which should be a component of any business process. This social media policy, however, illustrates that managing social media risks requires realistic and practical considerations. Requiring employees to have a working knowledge of antitrust laws to comply with a social media policydoes not fall into either category. 

Two Questions To Ask Before Drafting a Social Media Policies 

Against this backdrop and returning to the importance of asking the right questions, there are numerous legal and business process-related questions that should be addressed. But two fundamental questions employers should ask before implementing a social media policy are as follows:

First, who or what is the first priority you want employees to consider with respect to social media? While this will generally be customers, it may also include a brand, a critical business relationship or products. Once this question is answered, employers are then able to specifically define what is unacceptable when it comes to using social media involving their number one priority. However, this question is answered, it provides a quick check-point for an employee to consider before digitally memoralizing a thought in a Tweet, blog post, Facebook update, or whatever is next. 

Second, what is the minimum level of responsibility your employees should have to your first priority? For example, Liz Heron, the director of social media at the New York Times, recently explained that "[w]e basically just tell people to use common sense and don’t be stupid.” Certainly "stupid" may be subject to varying interpretations. But policies like the New York Times can be effective when employees understand they are expected to not be stupid, i.e., do no harm, to the employer's number one priority. 

Conclusion

There is no "cookie cutter" approach to drafting an effective social media policy. But having a multi-page dissertation of legalese and stock provisions intended to cover every social media situation and legal risk is far from a solution. In fact, such broadly written policies are actually coming under fire by an aggressive National Labor Relations Board.

So instead, a universal goal for employers should be to cut through the clutter of confusing or overbroad restrictions and provisions to provide a social media policy employees are likely and even motivated to follow. Also such restrictions impose an opportunity cost on the employer in terms of trying to actually enforce the policy.