Delaware Employment Law Blog

Employers everywhere are facing new challenges when it comes to employees’ use of social media. These technology-based challenges are different, though, for every employer and have different nuances between industries. Certain employees’ off-duty posts on social-networking sites, such as Facebook, can have significantly more impact than others. Police officers are one such type of employee.

For example, one criminal defendant in New York, who was facing charges for weapons possession, used the arresting officer’s MySpace and Facebook pages to get the charges dismissed. At trial, the officer was questioned about his Facebook status, which said that he was “watching Training Day to brush up on proper police procedure.” And, on the day of the defendant’s arrest, the officer’s “mood” on his MySpace page was set to “Devious.”

A Columbia, Missouri police officer was issued a serious discipline after internal affairs determined that he had posted information about the juvenile record of a protester who had been photographed and quoted in a newspaper story about police brutality. Although the officer has posted the comments under a pseudonym, the protester (and his lawyer) didn’t have to jump to too many conclusions before guessing someone from law enforcement was the likely poster, simply given the fact that juvenile records are not available to the public.

These stories are just two examples of the difficulties employers face when attempting to manage employees’ off-duty Internet activities. These Web 2.0 challenges, though, are complicated anytime a public servant is involved. And, as these stories show, public employees who interact directly with the public will be held to an even higher standard than most.

For more on social media and off-duty conduct, see:

Employee Fired When Her Sex Blog Is Discovered by Her Boss

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

State Off-Duty Conduct Laws and Facebook-Friending Policies

Use Twitter, Get Fired

Evidence from social-networking sites, such as Twitter, Facebook, and blogs, has become increasingly common in modern litigation. In a recent decision, the U.S. District Court for the District of Delaware permitted the use of consumer responses to a blog post as evidence in a lawsuit alleging fraud and deceptive trade practices.

In the case of QVC, Inc. v. Your Vitamins, Inc., No. 10-094-SLR (D. Del. July 27, 2010), the owner of Your Vitamins, Inc., a dietary supplement manufacturer, posted very unsavory comments about QVC on his blog. Among the allegations was the charge that Hyaluronic Acid, one of the active ingredient in a QVC dietary supplement, was linked to cancer.

QVC sued, alleging a litany of claims under state and federal law, some of which required QVC to demonstrate that the objectionable blog posts caused consumer confusion. In order to prove confusion, QVC pointed to consumer comments in response to the blog post. After reviewing relevant posts, none of which was flattering to QVC, the Court concluded that there was no evidence of confusion.

While QVC’s novel use of blog posts proved unsuccessful in this case, it certainly opens the door for new and creative uses of Internet posts as evidence. It goes without saying that as the Internet and its related technologies continue to develop, there is no end to the ways in which it will impact the law.

The "resignation" of a CNN editor due to comments made via Twitter was a big story last week.  (See Tweet At Your Own Risk: CNN Editor Learns the Hard Way).  But it certainly was not the first story involving an employee terminated for something he or she posts online, whether it's on Facebook (see Eagles Employee Gets Benched for Comment on Facebook Page), a personal blog (see Employee Fired When Her Sex Blog Is Discovered by Her Boss), or, like the CNN story, via Twitter.

We’ve covered plenty of stories about employees who tweet themselves out of a job. Despite the fact that these stories seem to make the news on a daily basis, employees still do not seem to have grasped the fundamental idea that anything and everything you post online can be used against you by your employer. Ok, well, not discussions of union activity, but just about everything else. Everything, that is, that would impact the employer negatively or put the organization in a bad light.

Recently, the Huffington Post highlighted 13 of these stories, focusing on employees who were fired as a result of [allegedly] inappropriate tweets. We’ve covered several of the stories here before but some of the ones we’ve missed are worth a closer look:

Number 4 on their list is the story of radio host Mike Bacsik. who tweeted, “Congratulations to all the dirty Mexicans” in response to the loss of his favorite basketball team, the Mavericks, to the San Antonio Spurs. Bacsik, who was a professional baseball player before his radio gig, was fired as a result of his racist comments, despite having tweeted an apology the following day.

Number 8 is the story of a former employee of California Pizza Kitchen, who apparently did not care for his employer’s new uniform mandate. The employee, who used the Twitter handle, @Traphik, tweeted, “@calpizzakitchen black button ups are the lamest shit ever!!!" Not surprisingly, management was alerted to the tweet and used the information in @Traphik’s bio to trace the tweet back to the bitter employee.

Number 13 is from the health-care field, an industry that faces significant challenges with social media. In response to a tweet by Mississippi Governor Haley Barbour, Jennifer Carter, a former nursing-school employee at University of Mississippi Medical Center, tweeted that one way for the State to cut expenses would be for the Governor to “Schedule regular medical exams like everyone else instead of paying UMC employees overtime to do it when clinics are usually closed.” Apparently, Carter was referring to an incident that occurred prior to her employment but that didn’t stop her employer from concluding that she’d violated HIPAA’s privacy requirements or from “compelling” Carter to resign.

See also, these posts on social media and its impact on the modern workplace:

Waitress Is Fired for Her Complaint on Facebook: Lesson Learned for Employers?

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

Employers who want to use include social-networking sites into their background-check process when considering potential job candidates often ask whether they have to notify the applicant in advance that his or her Facebook page may be viewed during the hiring process. Unless you have a third party perform the Facebook search, the answer is “no.” Employers do not legally need the consent of a potential employee to conduct an Internet search and to view what is otherwise publicly available. But the mere fact that something is not legally required does not necessarily mean that it’s not a good idea. In fact, I’m an advocate of notifying applicants not only that you intend to review the individual’s online presence, including his or her presence on social networks, but also the specific items that you’ll be looking for when you do conduct the search.

There are a number of reasons that I believe this to be the best practice, not the least of which is that it is a better way to begin the employment relationship than “sneaking” a peek at the candidate’s personal life. Additionally, when a candidate knows in advance that a potential employer will be viewing his online activity but still posts content that portrays him negatively, you have a legitimate basis to question the candidate’s judgment, as well as his true interest in the position.

Employers who heed this suggestion and do want to notify candidates of the employer’s intention to review the applicant’s online profiles, then, the next question is, “How?” Employers often request sample language to include on the job application. I’ve written previously that a single sentence ought to do the trick. The sentence can be included in the section of the job application that addresses background checks. For those employers who want specific language, though, I offer you a sample provided by the federal government. Here is what the feds now include on job applications:

As part of the agency’s review of your application, the agency may view and/or access publicly available information about you, including information publicly available on the internet, that is job-related and consistent with the merit system principles and prohibited personnel practices set forth in the Civil Service Reform Act, 5 U.S.C. 2301, 2302. No information from any source may be used to discriminate for or against an applicant based on race, color, national origin, gender, age, political affiliation, religion, disability, marital status, sexual orientation, gender identity, status as a parent, membership or non-membership in an employee organization.

My colleague, Adria B. Martinelli, noted that there is one piece missing from this otherwise good language. In addition to the protected characteristics listed in the paragraph above, federal agencies should consider including “genetic information,” as well, to comply with the latest federal employment law, the Genetic Information Nondiscrimination Act (“GINA”), which, as Adria points out, may turn out to expose employers to significant legal liability in the context of social media and employees. For more on this very recent issue, see Adria’s post, GINA and Social Media.

See also these posts relating to social media in the workplace:

Tweet At Your Own Risk: CNN Editor Learns the Hard Way

Are You Monitoring Your Employees’ Facebook Pages?

Employee Fired When Her Sex Blog Is Discovered by Her Boss

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

Sample Social-Media Policy

Twitter is a powerful medium for communication. Messages can be posted in seconds and from anywhere, and can reach a nearly limitless number of listeners.  But, with great power, well, . . . you know. 

CNN editor Octavia Nasr is the latest personality to make headlines for tweeting her way to the unemployment line. Nasr, who was responsible for the news station's Middle Eastern coverage, tweeted kind words about a Lebanese cleric who was famously anti-American.  When he passed away on Sunday, Nasr tweeted that he was "one of Hezbollah's giants I respect a lot."

CNN issued a statement calling the tweet an "error in judgment."  Nasr responded, blogging that she was referring to the cleric's position against so-called "honor killing" of women. She acknowledged that the life of a designated terrorist is not something she should have commented about "in a brief tweet. It's something that I deeply regret."

Nasr was a 20-year veteran of CNN and the decision for her to leave the company may seem to some to be a harsh sentence for a 140-character tweet. 

Source: Associated Press

See the posts in our Social Media in the Workplace category for related stories.

Almost exactly one year ago, we posted about the defense's request for a new trial in the Vincent Fumo case based on allegedly improper use of the Internet by a juror to research or talk about the case.  Their request was denied but it looks like they’ll have the chance to make their argument again, now that the prosecution has announced that it will appeal the sentence, which prosecutors argue is too lenient.

The State’s expected appeal will likely trigger an appeal by the defense, who are expected to argue that the case was tainted based on one juror’s postings about the case on Twitter and Facebook.

See also:

Fumo Found Guilty—No Thanks to Facebook

Fumo Seeks New Trial for Juror’s Twitter Use

Social-media searches by employers are all the rage when hiring new employees.  Every time talk about social media, inevitably the discussion turns to the question, “Can I check a candidate’s Facebook page?”  Last week, at my presentation to Delaware SHRM, this was the main topic of conversation—how to lawfully and ethically incorporate social-media searches in your background checks without setting your organization up for lawsuits and liability.

I offer a “solution” to the problem of potential legal risk with a multi-step plan to avoid the pitfalls that could otherwise arise.  One of the steps in this plan is to notify candidates of the possibility that you will be monitoring their online activity, including any social-networking profiles, such as Facebook, LinkedIn, or MySpace pages.  It’s easy to give the notice—the addition of a single sentence in your standard background-check notice will do the trick.  A second step is to get consent.  Again, a simple step because you’re already having the candidates sign off on the background-check form. 

After my presentation to Delaware SHRM last week, the program coordinator said that quite a few of the participants asked her after the session whether they could “ask” (read, “require”) current employees to give the same type of consent.  Well, the answer is “yes and no.”  (You didn’t think I was going to give a simple yes-or-no answer, did you?)

The “no” part of the answer comes from the argument that consent can’t truly be given if the “request” is actually a demand.  The “yes” part of the answer comes from the argument that there’d be no legal liability, so what’s to stop you? 

Ok, so both arguments are only half right, but here’s the full truth of it.  You don’t really stand to gain anything from “requiring consent.”  You don’t need consent to search what is public information—regardless of the sometimes distorted definition of “public” as many employees understand it. But, at the same time, there’s quite a bit to gained from being honest and transparent with your employees.

Instead of consent, consider disclosure.  Explain to employees: (1) what interests of the organization you are trying to protect (i.e., confidentiality, anti-harassment, regulatory compliance, etc.); (2) which online activities the organization believes pose the most risk to its interests (i.e., discriminatory statements, posting pictures taken inside the workplace, etc.); and (3) the lengths and limits of the monitoring efforts the organization believes will prevent these risks. 

See also these posts relating to social media in the workplace:

Employee Fired When Her Sex Blog Is Discovered by Her Boss

Why the Philadelphia Eagles (Still) Need a Social-Media Policy

Eagles Employee Gets Benched for Comment on Facebook Page

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

Sample Social-Media Policy

5 Non-Negotiable Provisions for Your Social-Media Policy

 

Follow me on Twitter @MollyDiBi

After waitress Ashley Johnson spent 3 hours waiting on a couple at the North Carolina pizza restaurant where she worked, she expected more than the $5 tip they left on the table.  According to the waitress, because the couple stayed so long, she had to stay on at work for an extra hour after her shift was over.  The 22-year old waitress was not happy about it.  And, as many 22-year olds are inclined to do, she talked about her unhappiness on Facebook. 

(Really, let's not make too much out of this conduct, though. There was a time, after all, when waiters and waitresses agonized over similar experiences in the restaurant's kitchen or at the server's station, even at the local bar following their shift.  Now, though, the entire digital universe can be privy to their stories of cheap patrons and similar frustrations.)

Johnson was subsequently fired for violation of the restaurant's policy banning workers from speaking disparagingly about customers on a social-networking site.  Brixx Wood Fired Pizza, Johnson's former employer, it appears, did the right thing--it thought ahead and implemented a social-media policy to address just this sort of situation.  And, it would seem to me, that a prohibition against disparaging patrons in a public forum is probably a pretty reasonable idea.  

So why is Brixx getting such negative feedback about the decision?  The Huffington Post posted a sampling of the comments from Brixx's Facebook page, which support Johnson and disagree with her termination.  Does the negative press seem to indicate that employers just have no recourse--with or without a social-media policy, they can't fire employees who speak badly about the organization or its customers?  Well, maybe.  But maybe not.

The comments ask the same questions that came to my mind as I read this story.  First, whose Facebook page did Johnson post her rant to?   Was it hers?  If so, was it private?  Second, did she identify herself as a Brixx employee?  Or just as a waitress?  Third, did she name the patrons or identify them in any way?  Fourth, how did Brixx learn about the rant?  If it found out "innocently," i.e., without coercing an employee to give management access to the employee's Facebook page as a way to covertly see Johnson's page, that's more problematic. 

Not that any of these will make or break the decision to terminate but they may be influential.  And, let's face it, these are questions that employers should be asking under similar circumstances. 

I say, good for Brixx to respond to the post by enforcing its policy.  That, after all, is why policies exist.  I also commend Brixx for using its Facebook page as a way to respond to those who may disagree with its decision.  Finally, I'd suggest that employers not be discouraged by the somewhat negative response Brixx has gotten.  These stories will continue to show up in the news for a long time to come.  So long as you have a clear policy that is communicated to employees and is enforced fairly and consistently, then employers shouldn't be deterred by a few individuals who may disagree. 

Related stories about social media in the workplace:

Employee Fired When Her Sex Blog Is Discovered by Her Boss

Why the Philadelphia Eagles (Still) Need a Social-Media Policy

Eagles Employee Gets Benched for Comment on Facebook Page

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

 

 

Follow me on Twitter @MollyDiBi

Should employers conduct online searches of job applicants? That’s one of the questions I’m asked most often by employers when talking about social media.  One of the less commonly asked questions is whether employers should conduct the same type of online search after the hiring decision has been made.  In other words, should employers monitor their employees’ online activities during employment? 

There are good arguments for and against this practice. For me, the most persuasive argument is logistics—it just doesn’t seem realistic for most employers to dedicate the resources required to monitor employees’ online habits.  But here’s a recent story that shows why employers may want to run a search of current employees on Google. 

Inc.com reported the story about a single mother in St. Louis who, during the day, worked for a non-profit.  At night, though, she wrote an anonymous “sex blog” called “The Beautiful Kind.”  She’d managed to keep her online identity a secret until Twitter came along. 

When she created her Twitter profile, she used her real name, thinking that only her handle would be visible. When she realized that her name actually appeared in her profile, she immediately removed it and adjusted the name field of her handle accordingly.  Immediately, however, was not quickly enough. 

Thanks to Topsy, a Twitter search engine, her original profile was cached and her real name was displayed next to her user handle. According to the blogger, senior management suggested that supervisors search the web for information about their employees.  When the blogger reported to work, she was fired by her boss, who had found out about her extracurricular “activities” on Topsy. The nonprofit claimed that it could not justify the risk to its public image caused by an employee’s racy blog.

The interesting point to this story, aside from the idea of supervisors being encouraged by senior management to spend time surfing the web, is that the employee was terminated as a result of conduct that did not involve her job.  She was blogging during nonworking time on a computer not owned by her employer or connected to her employer’s network.  In some states, where off-duty conduct is protected to varying degrees, the termination may be unlawful.  But, in Missouri, which does not have any laws offering such protection to employees, it would appear that the termination is entirely lawful.

And, if nothing else, this story is an excellent example of the principle that, if you put it on the Internet, you’d better assume that your boss is going to see it and is going to hold you accountable.

See these related posts for more about the impact of social media on employers and employees:

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

More Employers Searching Online for the Dirt on Candidates

Sample Social-Media Policy

5 Non-Negotiable Provisions for Your Social-Media Policy

State Off-Duty Conduct Laws and Facebook-Friending Policies

 

Follow me on Twitter @MollyDiBi

The Federal Trade Commission updated its Guides Concerning the Use of Endorsements and Testimonials in Advertising to require employees to disclose their employment relationship when “endorsing” their employer or the employer’s goods or services, or even defending the employer online.  The “Endorsement Guides” have real implications for employers in today’s Web 2.0 world, where CEOs blog, customer-service representatives tweet, and everything in between.  If you’re not familiar with the endorsement guides, you can get up to speed by reading this post, Another Reason Employers Need a Social-Media Policy: New FTC Regulations.

In that post, I cautioned readers that the FTC appeared to mean business with these rules and that we could expect some enforcement efforts shortly.  Looks like I wasn’t far off—and Ann Taylor Loft has the unlucky honor of being the first high-profile enforcement story.

Mashable.com reported this about the incident:

Ann Taylor invited bloggers to preview its Summer 2010 LOFT collection, promising attendees a “special gift” and entry into a “mystery gift-card drawing” for those who submitted [blog] posts to the company within 24 hours of the event. Ann Taylor avowed to reveal the value of the gift cards, which ranged from $50 to $500, to bloggers after receiving their posts. . . .

A sign was posted at the event advising bloggers to disclose the proffered gifts, however the FTC expressed concerned about the number of bloggers who actually saw the sign.

The Endorsement Guides states that bloggers must disclose “any material connections they share with the seller of the product or service” when writing about it.  Failure to comply can carry a hefty penalty, including a fine of $11,000 for disclosure violations.  FTC has indicated that it’s not as interested in the individual bloggers as it is in the organizations and brands whose goods and services are being endorsed.   Ann Taylor received a letter but no fine was issued. 

Employers should be proactive with social media, especially if making a conscious effort to encourage employees to engage online for their employer.  Even those organizations that do not necessarily encourage employees to participate in online brand building should review their social-media policy and follow up with meaningful education of employees to ensure compliance.

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

More Employers Searching Online for the Dirt on Candidates

Sample Social-Media Policy

5 Non-Negotiable Provisions for Your Social-Media Policy

State Off-Duty Conduct Laws and Facebook-Friending Policies

 

Follow me on Twitter @MollyDiBi

I had the pleasure of participating in a podcast about social media today for the ABA Journal.  The podcast turned into a lively discussion about the potential risks of social media for employers—and how to avoid them. 

You can listen to the 60-minute podcast at the ABA Journal website.

Management on Social Media: Good Employee Communication Tool or Liability?

A recent story about a judge in Ohio demonstrates why employers, when drafting a social media policy, may want to consider whether employees should be prohibited from posting anonymous comments online. 

More than 80 anonymous, opinionated comments posted on a newspaper’s website were traced back to the personal AOL e-mail account of Ohio Common Pleas Judge Shirley Strickland Saffold.  Many of the comments related to her high-profile cases.

Saffold’s 23-year-old daughter claimed responsibility for the comments but an examination of the judge’s court-issued computer shows that it was used to access the websites at the exact dates and times that the comments were posted. Comments included personal attacks against an attorney’s performance during trial and a statement that a defendant in a murder case was given a lenient decision by a jury because of his race.

Judge Saffold and her daughter are now suing the newspaper for $50 million for its release of her e-mail address (which is how she was "caught," if it turns out that she was, in fact, the poster of the comments).

For more on this dramatic story, see the posts at CitMediaLaw.org and First Amendment Coalition.

For related posts on social media and its impact on the workplace, see:

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

More Employers Searching Online for the Dirt on Candidates

Sample Social-Media Policy

5 Non-Negotiable Provisions for Your Social-Media Policy

State Off-Duty Conduct Laws and Facebook-Friending Policies

LinkedIn, a social networking site targeted towards professionals, can be used as an online Rolodex—a place to store one’s contacts and a vehicle to maintain professional relationships.  As with all social networking sites, LinkedIn and its potential uses should be on the radar of employers.  One of the potential issues that has been discussed is the ability to make a “recommendation” on LinkedIn, whereby one user can make positive comments about another.  Some critics have raised concerns about the problems that could arise should a former employee file suit for wrongful termination and use a positive recommendation left by his supervisor as evidence to support his claim. 

Another, equally serious concern is the ability of employees to upload client and customer lists as LinkedIn contacts and the inherent loss of control over those contacts resulting to the employer. An offshoot of this problem is the subject of a new lawsuit, which demonstrates yet another way that social media is affecting employers.

Portfolio.com reports about a noncompetition lawsuit filed by TEKSystems, an IT-services and staffing company.  In the suit, TEKSystems names three of its former employees and one of their new employers as defendants.  The suit alleges that the employees breached their noncompete and nonsolicitation obligations by contacting at least 20 of TEKSystem’s contract employees.

So far, the allegations are nothing out of the ordinary in the world of noncompete and nonsolicit lawsuits.  Employee promises not to steal customers or other employees when she leaves.  Employee leaves.  Employee tries to steal customers or other employees.  Employer sues. 

But then it gets interesting.  TEKSystems alleges that it can prove the breach with evidence from the defendants’ LinkedIn accounts.  TEKSystems claims that one of the defendants had LinkedIn connections with 16 of its contract employees and sent messages to those connections inviting them to visit her in her new workplace. 

This is the first lawsuit that I’ve heard of that is based in part on evidence from an employee’s LinkedIn account.  It’s a real-life example of the potential for harm to employers that can result from employees’ use of social media and emphasizes the need for employers to take a proactive approach with social media and the workplace.

NYT technology blog, Bits, reports on new technology being marketed to employers who want to keep tabs on their employees’ social-networking activities during working time. Joshua Brustein reports:

The software, called Social Sentry, will automatically monitor Facebook and Twitter accounts for $2 to $8 for each employee, depending on the size of the company and the level of activity being monitored.

I can’t say that I find this to be very surprising. Lots of employees seem to be offended at the idea that employers may block access to social-networking sites.  But the reality is that employers are responsible for what employees do while on company time.  And, in certain circumstances, employers also can be held liable for off-duty conduct of employees.  An employee who posts racially hostile remarks on his Facebook page can cause the organization to lose a case alleging a racially hostile work environment.  So it makes good business sense for employers to either block access to these sites altogether and/or monitor usage to prevent liability and attempt to protect productivity. 

The article also reports that, according to the latest survey by the American Management Association and the ePolicy Institute, more than 60 percent of the companies that responded have a social-media policy in place to help guard against these risks.  It seems like a logical next step to engage in some level of monitoring to ensure that employees comply with that policy.

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.