Delaware Employment Law Blog

According to a study by Microsoft, 70% of HR professionals have turned down job candidates because of the candidate’s online activity and reputation. On the flip side, approximately 60% of Internet users admit that their online behavior may affect their professional and personal lives.  But only 15% of them actually think of the potentially negative impact when surfing the Web and posting content. 

The same study showed that online reputation also can have a positive effect on a job applicant’s chances. Approximately 86% of respondents reported that they have given credit to candidates who have a good online blueprint.  And half of them said that a good reputation can make a really big difference when it comes to making the final hiring decision.

Maximum PC reported the study, which was published in January. 

I'm often asked for a sample social-media policy. I've posted before (see below) about online repositories for such policies and encourage readers to review as many such samples as possible before putting pen to paper and actually drafting your own.  Below is a sample policy (a set of guidelines, actually) that is a good starting point for most organizations. 

There are numerous additional provisions that could be included but this covers what are the key points for employees' use of social media.  Of course, if your organization is subject to additional legal obligations, such as those in the financial sector, additional considerations must be made to ensure compliance.  Your employment counsel can assist you in preparing your own internal guidelines.

Previous posts on social media in the workplace:

Social Media & HR Primer: 3 Key Tools

5 Non-Negotiable Provisions for Your Social-Media Policy

The 3 Principles for Social Media:  How to Be a Good Online Citizen

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

Sample Social-Media Policy Ideas

Social Media Policies: What about my “friends”?

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

GINA, the Genetic Information Nondiscrimination Law of 2009, is the first new federal discrimination law in decades. 

Although EEOC regulations are promised (the proposed regulations were published back in March 2009 and the comment period has been closed since May 2009) , they have yet to issue, leaving employers on their own to interpret this brand new statute.

One area which presents an interesting question is the role of social media in GINA. Unlike other discrimination laws, GINA makes illegal the mere acquisition of genetic information, which is defined broadly to include, among other things, information about manifested diseases of family members. There are many exceptions to this rule, including “commercially and publicly available information,” such as newspapers, magazines, periodicals, and books. The EEOC specifically invited public comment on whether “commercially and publicly available information” should include personal Web sites or social networking sites.

If these are NOT included within the exclusions, it would mean that if an employer reviews an applicant or employee’s Facebook or MySpace page, and learns genetic information in the process, it is in violation of GINA. Given GINA’s broad definition of “genetic information,” this could easily occur. For instance, discovering on Facebook that an employee marched in a Susan G. Komen Race for the Cure on behalf of her mother would reveal genetic information.

If this advertent act (review of Facebook, Google name search, etc.) inadvertently produced genetic information – the employer would still be on the hook unless social media is included within the “publicly available” exclusion. Therefore, if information obtained from social media is NOT considered to be “publicly available,” employers will have to reconsider how they conduct background checks, since even the most rudimentary background checks currently include a “Google” search and review of any online information it turns up.

Even if the regulations specify that social media is excluded from the acquisition portion of the statute, the thornier issue is what happens after an employer has this information, whether deemed advertent or inadvertent under the statute. As a result of GINA, any adverse employment action which occurs after an employer has such information may be suspect. Just like any other discrimination, timing and stray comments may each play a role in developing causation between the membership in a protected class and the adverse employment action. As discussed in my previous post, Pink Ribbons and Yellow Bracelets, “genetic information” is everywhere. It will be hard for employers NOT to learn this type of information about their employees.

Thus, employers and their managers must understand the significance once this type of information is learned by the employer. It does not mean that the employee has to be treated better than other employers. It does mean, however, that employers need to be on alert once genetic information is learned about an employee. Like any other protected class, employers need to be cognizant of suspicious timing and mindful that documentation regarding any legitimate performance issues is in order, before taking any adverse employment action.

Want to learn more about GINA and its implications for employers?  There are many opportunities: I will be presenting on GINA at the CUPA/SHRM conference on March 2; in an audioconference on May 4, sponsored by M. Lee Smith; and at the Annual Seminar on Employment Law hosted by the Delaware State Bar Association on May 11.  Stay tuned for more details on the audioconference and DSBA event.

Until then, learn more about GINA with these earlier posts:

The GINA's Out of the Bottle--And It's a New Weapon in the Work-Family Arsenal

GINA's Application to Caregiver Scenarios

GINA's Implication on Employers: Pink Ribbons and Yellow Bracelets 

GINA Presentation to Delaware SHRM 

Genetic Information Nondiscrimination Act Update

And, for more about the impact of social media on the workplace: 

Social Media & HR Primer: 3 Key Tools 

5 Non-Negotiable Provisions for Your Social-Media Policy 

The 3 Principles for Social Media:  How to Be a Good Online Citizen

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

Sample Social-Media Policy Ideas

Social Media Policies: What about my “friends”?

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

I talk a lot about how Human Resource professionals can use social media for a variety of workplace initiatives, ranging from recruiting, to engagement, to internal communications. For the uninitiated, though, the topic "social media" may have little real resonance. If you're an HR pro new to social media, there are three key types of social media that you need to understand at a bare minimum. Here's a primer on each.

Blogs

The word blog is short for “web log.” The author writes about topics he is passionate about, topics he wants others to learn about, or just his daily thoughts. The frequency of blog entries, called posts, depends on the topic and the blogger, and can range from multiple times daily, to weekly, to far less often.

In the hiring context, organizations can use blogs for several purposes, including: (1) improving the organization’s web presence (also known as search engine optimization or SEO); (2) humanizing the organization by projecting a public but personal voice; and (3) advertising particular job openings.

Microsoft Job’s Blog is an outstanding example of a recruiting blog done right.

Social-Networking Sites

Social-networking sites allow people to share information about themselves and to search for others with whom they can share information and form beneficial relationships. These sites are the modern version of the Kiwanis Club, the Rotary Club, Junior League, and local country clubs.

Facebook and LinkedIn are currently the most popular sites for recruiting efforts. LinkedIn targets professionals, particularly in knowledge industries, such as the information-technology, management, financial, and legal sectors. LinkedIn also targets an older demographic, though the average age of Facebook users continues to rise.

In the hiring context, organizations can utilize social-networking sites as a way to: (1) attract individuals who are not necessarily looking for employment (i.e., “passive candidates”); (2) provide current candidates with an inside look at working life inside the organization; (3) locate potential candidates for particular job openings; and (4) actively recruit high-potential candidates who may or may not be looking for employment. Another, increasingly common but less known use of social-networking sites by employers is keeping ties with former employees, known as alumni.

Some excellent examples of Facebook pages for recruiting include Hyatt Hotels and Resorts, the U.S. Army, and the CIA.

The HP Alumni group on LinkedIn, is an example of how organizations can leverage their alumni employees. There are also groups devoted specifically to HP alumni in certain geographic regions, as well as groups just for certain job types, such as sales.

Audio and Video

Posting videos online, either on your website or on sites like YouTube gives candidates a real-world preview of the work environment. Videos also can humanize your organization by putting a real employee as the public face for potential candidates.

KPMG’s branded YouTube channel, is one example of how to use video effectively. Google, not surprisingly, also puts YouTube to great use with its “Life at Google” channel, one of 27 channels it maintains on YouTube.

Learn more about social media in the workplace.

Less than one-third of U.S. employers have a social-media policy, according to Manpower in its recent study, Social Networks vs. Management? Harness the Power of Social Media. Not that this is a surprise.  Frankly, I’m more surprised when an employer actually does have a social-media policy in place. The recently published regulations of the FTC regarding employee endorsements and social-media sites may prompt some employers to get working on that policy. And, if that’s the case or if you’re considering a social-media policy for any other reason, here are some tips to help you on your way.

Before You Draft

There are three steps that must be completed before you can get to the heart of it and start to collaborate on the actual content of your policy. I’ve written about these steps before, so I’ll just touch on them here.

First, you have to educate the decision makers about what social media is all about. Likely, this means you’ll need to get at least some of the C-Suite to participate in social media to some degree. A lot of hand-holding is both appropriate and effective. Don’t expect executives to squeeze time into their already crammed schedules to learn about social media just for the heck of it. Work with them by doing the legwork for them. Collect relevant blog posts and send them to the decision maker once a week. Or monitor Twitter for mentions of the company’s name and provide those as part of your regular update. Anything to show them that social media is relevant.

Before putting pen to paper, employers should start with the 3 most important questions: Who, What, and Why. I’ve discussed these in more detail in an earlier post (See Social Media Is Here to Stay: Time to start that social-media policy). Generally, these questions address the following:

First, who will be regulated by the policy—i.e., will certain job titles or departments be excluded altogether or subject to less restrictions?

Second, what will be regulated—will all online activity be subject to the policy or only when the employee somehow associates himself with your organization (for example, by using his company e-mail account in his Twitter profile).

Third, why are you writing a policy in the first place? Is it to encourage employees to get out there and embrace social media, hopefully with some resulting benefits returning to the employer? Or are you trying to regulate online use of social-networking sites because productivity has become an issue? There are infinite variations of those two choices and your organization needs to settle on one before you start hashing out actual policy provisions.

Non-Negotiables

Regardless of what types of activity you decide to regulate with the policy and regardless of who will be subject to the policy’s provisions, there are certain standards that can be applied universally. I call these the “non-negotiables” of social-media use. Truthfully, many are likely to already exist within other company policies, such as an anti-harassment, confidentiality, or privacy policy. But not all of them. And not in one single policy. Here are some of what I consider to be “must-have” prohibitions or restrictions when it comes to employees’ use of social media, a set of “social-media principles,” if you will.

Keep Confidential Information Confidential. Company information should not be shared outside the company. Similarly, any activities that occur at the Company’s facilities should not be shared outside the company. Do not post pictures of Company events or of the interior of the Company’s facilities without express authorization. Do not share any information about clients or customers and do not identify any clients or customers by name or otherwise.

Be Nice. Do not post derogatory, defamatory, or inflammatory content about others for any reason. Disagreeing with another person’s opinions or actions is a legitimate form of expression. But express your disagreement in an intellectual and rational way supported by facts and references and free of any overt or underlying nastiness or hostility. Stay calm even if others post information about you or the Company that is untrue.

Do Not Break the Law. Do not engage in illegal or unlawful activities—at work or at any time. Do not publish pictures or other information about your participation in illegal activities. Similarly, do not publish anything that infers or implies that you are engaging in illegal conduct.

Protect Privacy Rights (of Yourself and of Others). Be very cautious about the ways in which you share personal or private information about yourself with others online. Assume that your coworkers and clients wish to maintain their privacy, as well. Do not post pictures of coworkers without their express permission. Do not share details of others’ personal lives online unless they’ve expressly authorized you to do so. Assume that anything and everything you post online will stay online forever, for anyone to see. If that makes you think twice about posting the information, then don’t.

Standards of Conduct Still Apply. Any conduct that would be grounds for dismissal if performed at work will be grounds for dismissal if performed online. Just as the Company does not tolerate use of race-, religion-, or gender-based slurs in the workplace, an employee’s use of such slurs in cyberspace will be grounds for immediate termination. Similarly, just as workplace harassment will not be tolerated, harassing behavior that is conducted online will not be tolerated. Threats of violence towards others, like hate-based language and harassment, is grounds for termination.

See these earlier posts for more help with your social-media policy:

3 Reasons Why Employers Don't Have a Social-Networking Policy

The 3 Principles for Social Media:  How to Be a Good Online Citizen

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

Sample Social-Media Policy Ideas

Social Media Policies: What about my “friends”?

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

 

 

    Follow me on Twitter @MollyDiBi

What are the legal reasons that an employer needs a social-media policy? That’s a question that I get a lot when discussing social media with clients and others. And, maybe more often, “Are there any reasons that I need a social-media policy?”  This is a complicated question, really. And there are lots of possible answers. But there’s at least one new legal reason for employers to stop procrastinating, get the idea out of committee, and get to work on such a policy.

Recently, the Federal Trade Commission (FTC), issued regulations that affect nearly every business—at least every business with a workforce that has access to a computer (either on or off working time). The FTC is the government agency charged with the responsibility of protecting consumers against false and deceptive advertisements, among other things.  The FTC’s newest regulations, called the Guides Concerning the Use of Endorsements and Testimonials in Advertising (PDF), sets fairly strict restrictions on employees’ use of social media to talk about a product or service offered by their employers.

Section 255.1(d) of the Guides provides that:

Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers. Endorsers also may be liable for statements made in the course of their endorsements.

The key language in this section is that an “endorser” must disclose any “material connection” between himself and the company that sells the product or service being endorsed. In other words, if I am married to a local restaurateur, I must disclose that connection any time I endorse the restaurant. An “endorsement” is any advertising message, including verbal statements, that consumers are likely to believe reflects the opinions, beliefs, or experiences of a party other than the sponsoring advertiser. See Section 255.0(b). So, if I say that my spouse’s restaurant, hands down, serves the best braised short ribs a girl could ever have, then I need to add a disclaimer such as, “Of course, I may be a bit biased, since I happen to be married to the chef.”

What is the impact on employers?

Under the new regulations, any time an employee endorses your product or service, he is required to disclose his employment relationship. This means that employees must disclose their material connection any time they promote or defend the organization, its products, or its services.

The world of social media provides for an unlimited number of circumstances for this situation to occur. A comment left on a blog, or a tweet on Twitter, or even a few words of praise posted on an employee’s Facebook profile could be construed as an endorsement if it “reflects [the employee’s] opinions, beliefs, or experiences” about a product or service offered by the employer.

What if the employee fails to disclose the employment relationship?

If an employee tweets about his employer’s pizza being the best around, he must do so in compliance with the regulations. Failure to do so and both the employee and the employer are on the hook. Both can be held liable if the comment or statement is false or unsubstantiated. So, if the pizza really is the best in town and you’ve got the studies to show it, then there’s no real risk of liability. But, if an employee leaves a comment on a blog about a particular brand of laundry detergent that works wonders on grass stains, and another person reads the comment, buys the detergent, and isn’t satisfied with its stain-fighting powers, there may be problems.

There is no private right of action under the FTC Act but the organization is exposed to investigation or suit by the FTC.

How to prevent potential liability

The critical take-away from the new FTC Guides is this: Employers must have a social-media policy that addresses the ways employees talk about their employers. The social-media policy should make very clear that employees are not permitted to talk about the company or its products or services unless they provide a clear disclaimer stating their affiliation with the organization.

One thing that the Guides fail to address is what constitutes a sufficient disclosure in the social-media context. The examples that are provided in the Guides are scenarios that occur in the context of television ads, when the speaker (endorser) has an opportunity to state his affiliation. This is not possible in 140 characters or less. Is it enough that the employee includes a disclaimer that states his connection to the company in his Twitter profile? Maybe. The Guides do not address this situation and don’t give any guidance about how the regulations would be applied in this context.

What if the employee’s profile lists a company e-mail address (i.e., Joe@BestPizza.com)? Is that enough to put the average consumer on notice of a “material connection”? Probably not. The Guides do make clear that the disclaimer has to be reasonably apparent to the average person. Asking the reader to imply from an e-mail address that a “material connection” exists is probably hoping for too much.

Until the specifics are known, employers are best advised to take a very proactive approach in order to avoid potential liability. They should include in their social-media policies a provision that specifically addresses expectations for conduct when an employee discusses the company when online. Employers should then train employees on the policy and should not turn a blind eye to a report that the policy has been violated.

The potential exposure to employers for employees’ online conduct can seem overwhelming. But the reality is that Web 2.0 is here to stay. It’s best to get a policy in place now, rather than wait with eyes closed and hope that the issue simply disappears.

 

Other posts on social media and its impact on employers:

Social-Media Policy Ideas

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

3 Reasons Why Employers Don't Have a Social-Networking Policy

Social Media Policies: What about my “friends”?

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

The 3 Principles for Social Media:  How to Be a Good Online Citizen

 

Follow me on Twitter at @MollyDiBi.

The Ragan video featuring Mayo Clinic, which I described in the last post, is well timed.  Earlier this week, Cisco announced the findings of a study on social networking and its adoption in the enterprise.  Based on interviews with more than 100 companies , the study explores the primary tools being used, which areas of business are adopting them and how they’re putting them to use, and some of the challenges that are arising.

One of the lead researchers, Neil Hair of the Rochester Institute of Technology, discusses two of the study’s most interesting findings:  the proliferation of social media tools to new areas of the business and the growing need for governance models.  Both are issues facing the modern employer.

 

For more examples of great social-media ideas, see these related posts:

Learn by Example: Top Social Brands of 2009

Social-Media Policy Ideas

Sample Social-Media Guidelines

 

 

 

Follow me on Twitter @MollyDiBi

If your organization is considering putting social media to use but is struggling with innovative ways to use these new tools, there’s no need to reinvent the wheel.  Instead, look to others who have come up with these ideas and implemented them in their workplace.  In a short video On My Ragan TV.com, Mayo Clinic's Linda Donlin discusses how the hospital uses video, enewsletters, blogs, and other tools to keep staff informed about strategic initiatives and to keep personnel engaged at work. 

 

 

For more examples of great social-media ideas, see these related posts:

Learn by Example: Top Social Brands of 2009

Social-Media Policy Ideas

Sample Social-Media Guidelines

 

 

 

Follow me on Twitter @MollyDiBi

The best way to learn about social media is from the examples of others.  This includes both good and bad examples--you can learn quite a bit by studying the social-media blunders of organizations, as well as how they responded to the blunder.  So anytime I talk to organizations and, specifically, to HR professionals about how they can put social media to use, I try to give examples of organizations that are getting it right.  (Sodexo and Deloitte & Touche are two of my consistent favorites).

Virtue, a social-branding company, has published its "Top 100 Social Brands of 2009."  The list is an ideal place to start when trying to see what others are doing in the world of social media. 

Interestingly, neither of my two favorites are on the list.  But this is largely a result of the way values were assigned.  I'm interested in companies' uses of social media for hiring, recruiting, and engagement.  Virtue's perspective, as I understand it, is largely product based (i.e., a hard-dollar return). 

Nonetheless, it's a great starting point to get some very innovative ideas for what can be done in the world of social media.

Related posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

3 Reasons Why Employers Don't Have a Social-Networking Policy

 

  Follow me on Twitter @MollyDiBi

The Philadelphia Eagles have already had at least one negative experience with social media.  You may recall that, in March 2009, the organization received a lot of negative publicity following its termination of an employee who made less-than-favorable comments about the team's decision to trade Philly favorite, Brian Dawkins--those comments were posted on the employee's Facebook page.  (See Eagles Employee Gets Benched for Comment on Facebook Page). 

Despite the negative pushback, the organization stuck with its decision to terminate the employee.  So you'd think that it would have taken the initiative to draft a social-media policy (or at least some guidelines) for employees' use going forward.

Well, either the policy never got written or an employee violated it because the Eagles have made the news again with another social-media snafu. An employee decided it would be a good way to show team enthusiasm, I guess, to spit (yes, spit) on the midfield star at the Dallas Cowboy's new stadium. Not only to spit (twice, to be specific), but to video tape himself spitting. Oh, wait, it gets better.  He posted the video to the team's web site. 

Wow.  How many things are wrong with that story?

The employee, who also is the team's web site editor, posted an apology on the site on Wednesday and the video was removed from the site.  As proof of the maximum that everything that is posted on the Internet is permanent, the video was grabbed and posted on You Tube. The apology included the disclaimer that he was acting "alone and without permission from the Eagles organization."

This story is an example of several important principles.  Here are a few that come to mind:

1.  Have a social-media policy that prohibits employees from disparaging anyone, including competitors or rival organizations.

2.  Educate employees on what constitutes good and poor judgment.  This conduct should have been an obvious example of what not to do, in my opinion, but, the painful reality is that it wasn't.  As evidenced by the fact that the employee posted the video on the team's web site. 

3.  Use this example as a teaching experience.  Communicate to other employees in the organization what went right and what went wrong here and use this as a learning opportunity. 

 

Related Posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

3 Reasons Why Employers Don't Have a Social-Networking Policy

Social Media Policies: What about my “friends”?

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

 

 

    Follow me on Twitter @MollyDiBi

Many employers have begun to use online social networking sites, like Facebook and Twitter, for a number of purposes, from recruiting to marketing and sales, to name promotion and branding efforts.  Those organizations that have not yet made the steps to go online but are considering it seem to want guidance that is more concrete and definite.  The newness of social media, however, makes this difficult. 

During the past year, I’ve written a lot, talked a lot, and counseled a lot of employers about social media.  I’ve also made the leap into the Twitterverse and become a believer in the potential that Twitter has to offer.  Looking back at this experience, I think there are three principles that apply to social media.  These three principles can serve as a guide for employers who are considering social media as a business tool but apply equally well to those of us who currently are online to serve as a sort of litmus test.  If your online activities serve these three purposes, they’re probably going to fall in the beneficial—as opposed to risky—category.

They would serve an equivalent goal if incorporated into social networking policies, giving employees a good sense of the reasons behind online engagement and providing a sense of purpose for online activity.

Community

The primary reason for social networking is to share.  Users share knowledge and information on every topic imaginable.  And one of the reasons that social media has become so popular so quickly is its ability to connect individuals in a more direct and immediate way than previously possible.  When you’re thinking about potential content, ask yourself whether the information you’re about to share contributes something to the online community.

Conversation

In any good community, participants understand that the dialogue must go both ways.  No one likes someone who talks only about himself.  You must listen, as well as talk.  This means that you want to answer questions and comment on relevant topics.  A successful social media experience is interactive, so avoid trying to always be the star of the show.

Transparency

In light of the first two themes, this third theme should be self-evident.  You’re going to be contributing to the online community with your conversation.  Be honest and transparent when engaging in this conversation.  If you promote or even discuss your organization, its products, or services, always disclose the affiliation.  Don’t “pretend” to be an average-Joe consumer if you actually work for the company.  Failure to disclose the true nature of your relationship can cause you to lose all credibility and result in more harm to your organization than the benefits you intended.

 

Related Posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

3 Reasons Why Employers Don't Have a Social-Networking Policy

Social Media Policies: What about my “friends”?

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

 

  

Follow me on Twitter @MollyDiBi

The line between work and home is hardly visible.  To describe it as “blurred” would be inaccurate. The reality (for most of us) is that the line can barely be seen and, for some, only fades into existence occasionally for short intervals.   And there seems to be little debate about the validity of this conclusion.  The debate begins only when the question is asked whether this reality is a positive or negative one.

For most, I believe it’s perceived negatively. At least it sounds that way when I hear it discussed.  Because what normally follows is the argument that, because of the “blurred” line between work and home, a metaphor most commonly described with a  visual of a worker whose Blackberry must be surgically removed from his hand, employers must permit employees a bit of “leeway” in their electronic follies.  For example, the story goes, because employees may be expected to respond to a client emergency after normal business hours, they should be permitted to do some online shopping during the work day. Or, another story goes, because employees are working more hours than ever before, they have no choice but to do some online banking from their office.  The need to send personal e-mails, browse the malls of cyberspace, and update one’s Facebook status takes precedent over the need to [gasp] work.

Oh, hogwash.

I just cannot buy into this nonsense.  The argument that employees should retain some right of privacy in the e-mails that they send from the account provided to them by their employers, using the computers purchased, maintained, and serviced by their employers, on a network owned by their employers, using bandwith that their employers intended for use for work-related purposes, is a losing one to me.

Those who argue in favor of this alleged entitlement for online detours during the work day must forget that not all employees are exempt. In fact, most workers are non-exempt, meaning that they must be paid (by their employer) for all time worked in excess of 40 per week.  (More in some states, mind you.)  So , non-exempt employees who take short detours to e-Bay via the information superhighway during working time have one of only two impacts: either they are being paid for something they’re not actually doing—some might call that stealing, or they are getting paid time and a half for it because they need to stay late to get their work completed on time.  There’s also a third option: that the employee completes his or her work in a hurry or in a half-done manner to expedite his access to the Internet.

To me, none of these three is an acceptable solution. Has it really become acceptable to demand we be given the choice to not work while at work?  Maybe the manufacturing sector is the only one that hasn’t lost its collective mind by taking breaks of designated lengths at designated intervals but actually working during the rest of the work day.  Not so novel, really, but seemingly a rarity in the office environment.

The following is an advisory opinion issued in October by the South Carolina Advisory Committee on Standards of Judicial Conduct that addresses the use of social-networking sites by a magistrate judge:

FACTS

A magistrate judge has inquired as to the propriety of being a member of Facebook, a social networking site. The Magistrate is friends with several law enforcement officers and employees of the Magistrate’s office. The Magistrate is concerned about the possibility of an appearance of impropriety since the list of Facebook subscribers is vast.

CONCLUSION

A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.

OPINION

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(A), Rule 501, SCACR. However, the commentary to Canon 4 states that complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook. 

[via Legal Profession Blog]

The South Carolina opinion is more permissive than the more recent Florida advisory opinion, which provides that judges may not friend lawyers who may appear before them.

*   *   *   *   *

See also:

What's a "Friend," Really?

Ethical Implications of "Friend-ing" a Witness on Facebook

Searching MySpace and Facebook for Job Applicants and . . . Judges?

 

     Follow me on Twitter @MollyDiBi

The Florida Judicial Ethics Advisory Committee has issued an opinion on judges’ use of social-networking sites.  In short, the opinion advises judges of the following:

Judges may have a personal page on Facebook or other social-networking sites and may post comments and other materials on their own pages, provided the material does not otherwise violate the Code of Judicial Conduct.

A judge may not be “friends” with any lawyer who may appear before him.

The opinion recognizes that being a Facebook friend does not mean that there is a friendship in the traditional sense.  But, by identifying the lawyer as a “friend,” the judge risks conveying that the lawyer is in a position to influence the judge.  Thus creating or potentially creating, the appearance of impropriety.

[via N.Y.T.]

See also:

What's a "Friend," Really?

Ethical Implications of "Friend-ing" a Witness on Facebook

Searching MySpace and Facebook for Job Applicants and . . . Judges?

 

Follow me on Twitter @MollyDiBi

In an earlier post, I discussed the implications of "friending" by employees.  I suggested that there are a few options for employers and how they handle this sometimes awkward social-networking phenomenon.  One option is to prohibit supervisors from making friend requests to their direct reports.

Patrick Della Valle, of ELinfonet.com, made an excellent point in a comment to the post.  He noted:

I believe that some states (like New York) have "recreational activities" laws that prohibit an employer from discharging an employee for engaging in lawful activity outside of working hours. I don't know whether "friending" qualifies, but it's something to consider.

His point about off-duty conduct laws is such an excellent one that it merits more than just a comment in response. 

Continue reading "Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies" »

Social-media guidelines has been the topic of several recent posts. One of the questions that I suggest employers consider when drafting a social-media policy is “the friending issue.”  That’s right. 

When deciding on how employees will be encouraged or required to engage online, one point that comes up repeatedly is whether there should be any rules with respect to friending on Facebook. 

 

There are several possible answers to this question.  I don’t advocate that any one of them is the only “right” answer. It will depend, in large part, on your company’s culture and the organization’s overall approach to social media.  But you should think about them, nonetheless.  Here are the choices:

 

1.  No rules. Anyone can friend anyone and the employer won’t get involved.

2.  Supervisors may not make friend requests to direct reports.  Direct reports may make friend requests to supervisors, in which case the supervisor has the discretion to accept (or not accept) the request.

3.  Supervisors may not make friend requests to direct reports.  Direct reports may not make friend requests to their supervisor. Colleagues may be friends on Facebook.

 

Although I don’t believe any of the 3 are the “best” answer, I do advocate that employers at least consider implementing the second choice, which prohibits supervisors from friending their direct reports.  Common sense dictates that any request that comes from a supervisor is going to be given more consideration. In other words, will the employee really feel free to deny the request?  Likely not.

And what’s the potential harm by implementing this rule?  Very little.  The employee can make the request if he wants.  It seems to me that prohibiting a supervisor from being the initiating party, the only thing you’re prohibiting is possible undue pressure or coercion.

 

Follow me on Twitter @MollyDiBi

Related Posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

3 Reasons Why Employers Don't Have a Social-Networking Policy

Another Facebook-as-evidence story, this time from Canada.

The plaintiff sought damages for personal injuries allegedly sustained in a motor-vehicle accident. He claimed that he suffered “debilitating fatigue” as a result of the accident, which precluded him from working, thus contributing to his damages.  The defendant sought production of the plaintiff’s home computer for forensic inspection.  The defendant sought to prove that the plaintiff spent hours, late at night, on his computer using Facebook.  The defendant contended that all of this late night Facebooking contributed to his alleged fatigue.

via All About Information

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At the AON Social Media & HR Summit conference this week, the topic of social-media policies has come up repeatedly.  Attendees at this event are very savvy with respect to the multitude of ways that social media can be used in Human Resources and by employers, generally.  But a question that keeps coming up is “Ok, so now what?”  HR professionals seem to be embracing the many ways that social media can be used but know that there needs to be a set of guidelines for acceptable and appropriate use. 

Crafting a social-media policy is no easy task.  There are so many variables and possible risks that can and should be addressed before you roll out your social-media initiatives.  I’m going to be speaking again on a panel at the conference here in Chicago in about 20 minutes, so I won’t have time to outline all of the possibilities, so I’ll give you an idea of the first three steps in the process of creating a social-media process.

1.  Familiarize the Decision Makers

Unless and until the relevant decision makers understand what social media is, you’re going to have very little luck with getting any program in place.  The first step has to be to get those with the decision-making power comfortable with the possibilities.  So set up a Twitter account for your C-Suite and let them listen to the conversation first so they know what they can expect when the organization makes the move towards social media.

2.  Select Key Players

Identify the individuals who will participate in the policy-drafting process.  Who will be your core group?  Consider getting stakeholders from various departments involved.  In addition to HR, consider involving representatives of Corporate Legal, Marketing / PR / Communications, and IT also participate in drafting the guidelines. Will you have a core group draft an outline and then permit employees comment on the draft like IBM did?  Participation does wonders for buy-in of the policy.

3.  Determine Objectives

Policy decisions can’t be made unless you have a clear mission and true understanding of what your underlying objectives are.  You can think of it on a spectrum.  On one end of the spectrum, you have an objective of keeping employees away from social media when it comes to their work.  If that’s the objective, you’re going to focus on banning the use of social media in the workplace.  At the other end of the spectrum is the objective of getting your employees fully engaged in social media, using employees as brand advocates and key recruiters.  If these are key goals, then you want to share and include, not censor and prohibit. 

 

More to come on social media policies. . .

Social-media policies are a really hot topic. I spoke today for 3 hours (and 20 minutes, to be exact) about what things an organization should consider when preparing to draft a social-media policy. (To follow the conference on Twitter, use the hashtag #aonsocial09). After the talk, several of the attendees commented that they appreciated the substantive nature of the presentation; i.e., that it was more of a roll-up-your-sleeves type of presentation as compared to more theory-based. This was probably a result of the length of the session. With three hours, it was easier to get into the real heart of the topic instead of an overview.

In any event, I promised during the session that I would post some links to sample policies that are circulating around the web, and I’ve done that below. Because of the high-level of interest in the topic of social-media policies and guidelines, I’m also going to post about some of the more critical things to include in your policy, and, separately, about how to go about preparing a social-media policy. Honestly, there were a number of topics that we discussed that I’d like to share with our blog readers. In the meantime, you can whet your appetite with some leisure reading...

Media Organizations

BBC Guidelines Personal use of Social Networking and other third party websites 

Associated Press Social Networking Q&A (PDF via Wired.com)

NPR News Staff Social Media Guidelines

Technology Industries

IBM Social Computing Guidelines

Intel Social Media Guidelines

SAP Social Media Guidelines 2009

Sun MicroSystems Guidelines on Public Discourse

Online Repositories and Collections of Links

Social Media Governance Database

TechRepublic Links to Social Media Policies

About.com Sample Blogging Policy

Laurel Papworth’s Collection of Social Media Policies from 40 Enterprises

 

See these prior related posts:

Social Media Is Here to Stay: Time to Start that Workplace Policy

3 Reasons Why Employers Don't Have a Social-Networking Policy

 

Follow me on Twitter @MollyDiBi

Employers are struggling to develop effective social-media policies. And for good reason—it can be hard to draft a policy that is intended to address issues that are unfamiliar and that arise from technology that many employers don’t quite understand.  Which may explain why some employers have been making news headlines with their Facebook and Twitter policies.

One of the reasons that employers implement (and should implement) social-media policies is to help mitigate the risk of liability.  When given an unrestricted forum in which to “express” oneself, people often write things that they shouldn’t.  The anonymity of the Internet makes this risk all the more real because things we would never say to another person in conversation become much easier to “say” online. The fact that our online expression comes in the form of the written word further exacerbates the potential problem because what we write online is as permanent as permanent can be.

This “perfect storm” of potential liability came to fruition with the postings of NFL player, Larry Johnson, who, at the time, played for the K.C. Chiefs.  First, Johnson took on Chiefs Head Coach Haley, tweeting about what he perceived to be Haley’s lack of credentials.  If there’s one thing we should know by now about social media, it’s that tweeting bad things about your boss is generally a bad idea.

But, for Johnson, it got worse.  One of his followers engaged Johnson in a series of tweets, heckling him about his comments. The heckler apparently was effective—getting Johnson so agitated that he tweeted back with a gay slur.  As a result, he was suspended and fined $213,000, the amount he would have been paid had he not been sidelined for his inappropriate conduct. 

Johnson was released from his contract with the Chiefs on November 9, making him one of the first professional athletes to be fired for his Twitter activity.  He was later picked up by the Bengals.

The big-picture lesson here is that employers must consider whether they need a social-media policy.  But the real take-away is this: if you have employees who are in the public eye (for whatever reason), they may need to be subject to stricter or at least more specific rules for their social-media activity.  The larger the audience, the greater the potential harm when an employee missteps and conducts himself in a way that does not reflect the organization’s views or culture. 

Hat tip to Rob Radcliff, whose Texas blawg, Smooth Transitions, made my list of 2009 Top 100 employment law blogs.