Employment and Social Media: An Introduction to the Rules for Human Resource Professionals

What is Social Media?What is Social Media?

Social media is the use of Internet and web-based applications to communicate to one or more individuals.

Social media can be considered personal communication or broadcasting depending on the number of people that the message reaches.

Personal Personal CommunicationCommunication

Instant messaging Typically between two people

Personal websites Personal blog

Text messaging Typically between two people

Broadcast MediaBroadcast Media

Broadcast media is meant to be read by more than just friends and family. Professional communications Special interest sites

Professional Professional CommunicationCommunication

Company website

LinkedIn

Industry specific sites (Lawyers.com, Avvo.com, etc)

Facebook fanpages

Personal/Professional Personal/Professional SitesSites

Facebook Typically your profile is personal Typically your fanpage is business or special

interest

Twitter

Blogging

Biggest Things to Biggest Things to RememberRemember

Policies are not new!

Social media is just another way of doing something old!

Three Areas of Three Areas of Online/Social Media for Online/Social Media for

HRHR Hiring Process

During Employment

After Termination of Employment

Prior to EmploymentPrior to Employment

Recent study by Harris Interactive regarding HR personnel: 45% use social networking sites to research job

candidates 11% planning to implement social media

screening in the very near future

Hiring ProcessHiring Process

Recent study by Harris Interactive regarding HR personnel: 53% won’t hire if provocative photos and/or

info 44% won’t hire if alcohol and/or drug use 35% won’t hire if bad comments about former

employers

Can DiscriminateCan Discriminate

Illegal drug use

Poor writing/communication skills

Comments about previous employers

Racist/inappropriate comments

Can’t DiscriminateCan’t Discriminate

Race

Age

Disabilities

Religion

Veteran status

National origin

Sexual orientation

Things to ConsiderThings to Consider

Privacy concerns Questions if research online violates Fair Credit

Reporting Act

Discrimination Hard to prove you didn’t use information you

found online

Areas of ConcernAreas of Concern

Not everything online is true Some sights have wrong information Others have old information

Best PracticesBest Practices

Have non-involved party research and remove any information that isn’t relevant/violates discrimination laws

Have clear policy laid out and follow it for all potential employees

Get release from potential employees that you are conducting online screening

Social Media during Social Media during EmploymentEmployment

Confidentiality Agreements Have signed when employed State what can and cannot be disclosed

Information about guests Photos of guests Company information

Consistent for all employees

Communications Communications PoliciesPolicies

Possibly need whole communications policy

What can be put online

When it can be put online

Who can access the information

Whether company property can be used to access personal sites

RecommendationsRecommendations

Online recommendations Policy needed on what managers can say

online Can be used against company later in court

EndorsementsEndorsements

FTC recent guidelines on endorsements Must disclose material connection If company doesn’t have policy in place, can be

liable for comments of employees!

Privacy ConcernsPrivacy Concerns

First Amendment only applies to government, not private corporations!

Even then Must have reasonable expectation of privacy Intrusion that is offensive to the reasonable

person

RetaliationRetaliation

Cannot retaliate for: Complaining about illegal practices Whistle-blowing In some cases, complaining about

management

SeparationSeparation

In some cases, need clear separation Ask employees to put disclaimers Ask employees not to talk about work

Other laws may apply!Other laws may apply!

Wiretapping laws

Telecommunications laws

Labor laws

Trade secret laws

Copyright laws

After EmploymentAfter Employment

Confidentiality Agreements Need to have resigned Make sure employees understand continuing

obligations!

RecommendationsRecommendations

After dismissal Careful with recommendations Limited in scope and nature

MonitorMonitor

Monitor for damage control

GM case

Stories that made the Stories that made the newsnews

No cases in Colorado made it to Appellate or Supreme Court yet

Other cases around nation Man hacked into computers, one year prison Guard terminated for beating inmate Eagles fired employee who called Eagle

personnel “retarded”

Additional StoriesAdditional Stories

Police woman fired for provocative photos

Potential employee not hired for tweeting about possible job

Police officer posted about movies before beating

More storiesMore stories

Hospital workers fired for racists comments

Technician fired for murder victim photos

Police officer fired for leaking sensitive info

Dominos’ CaseDominos’ Case

Video by employees

Criminal charges

Damage to Dominos

NJ CaseNJ Case

Restaurant employee created MySpace group

Accessed by managers, eventually fired employee

Violation of telecommunications law

Georgia CaseGeorgia Case

School teacher fired for Europe pictures

Lawsuit pending over privacy currently

City of Ontario v. QuonCity of Ontario v. Quon

Supreme Court case involving texting

Used company phone

Involves police department

Written communication policy

Final ThoughtsFinal Thoughts

Have good policies in place.

Be consistent.

New media, same laws.

If in doubt, ask questions.

Follow the same rules for online communication that you would for offline communications.

Use common sense.

Law Office of Law Office of E.C. Lewis, P.C.E.C. Lewis, P.C.

Elizabeth C. Lewis, Esq.www.eclewis.com

720-530-3405

Elizabeth.Lewis@eclewis.com

www.facebook.com/legalsolutions

www.twitter.com/eclewis