Social media policies are growing in importance each day as the use of social media becomes more and more prevalent. Even when social media sites are blocked while on-the-job, employee use of smart phones and even after-hours use of social media can directly affect employers. Even before hiring someone new, social media can have pitfalls for employers if used as part of candidate background checks. Ensuring you have a clear social media policy in your employee handbook is your first line of defense, but where do you draw the line? What expectation of privacy do employees have with respect to postings on social media?
To avoid liability when creating a social media policy, "employers should understand the current status of what the law is and what their situation is: what are the facts of their particular case? [They should] understand the law and the legal limitations and develop best practices that are legally compliant." Jacqueline Scott explained during a recent BLR webinar. Scott and colleague Steven Semler outlined some best practices, including what NOT to include in your social media policy if you want to remain legally compliant.
Social Media Policies: What NOT To Do
When creating your social media policies, here’s what NOT to do:
- Don’t screen applicants on social media and/or ask for passwords to such sites. "Increasingly [such practices] will be prohibited by both federal and state law," Scott explained. Additionally, screening on social media opens the risk for discrimination claims based on protected class status that may be discovered in social media postings.
- "Don’t adopt social media policies which are overbroad, or which unreasonably chill the exercise of protected concerted activity rights under the NLRA." Scott continued.
- Don’t fire or discipline employees for social media content without first reviewing with counsel to ensure you are not crossing the line. Remember that the line is moving quickly as technology changes!
- Don’t use third-party apps that are overbroad in their access to applicant and employee information.
- Don’t refuse to hire applicants (or fire or discipline employees) based on information culled from social media without checking with experienced legal counsel.
Social Media Policies: What TO Do
Here are some "dos" for social media policies
- Create a current, effective and enforceable social media policy.
- Instruct employees not to use vulgar, obscene, threatening, intimidating or harassing language; attack people based on protected status (e.g., union status or activity, disability, national origin, etc.); disparage company products and services; or disclose confidential or proprietary company information.
- Train employees about social media policies.
- "Use a non-decision-maker to filter the contents of the social media page" if you do use social media as part of applicant screening, Semler advised. This is so you don’t get charged with the knowledge of protected status.
- Monitor ongoing legal developments and conform your practices to those changes. For example, monitor the constantly changing laws, regulations and rules established and implemented by federal and state legislatures, agencies and courts.
For more information on what to avoid when drafting social media policies in the workplace, order the webinar recording of " Social Media at Work: How to Legally Monitor Employee Facebook, Smartphone, and Blog Activity." To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Jacqueline R. Scott is a co-founder of FortneyScott, where her diverse practice focuses on business, international, and workplace matters. She advises clients on workplace investigations, worker classification issues, executive compensation, compliance with the wage and hour requirements of the Fair Labor Standards Act, DOL Opinion Letters, and federal contractors’ nondiscrimination and affirmative action obligations.
Attorney Steven R. Semler is Of Counsel with FortneyScott and has been representing management in labor and employment law for over 35 years. He has significant experience in counseling employers facing union organizing efforts and in successfully defending employers against a wide range of EEO administrative charges and litigation claims.