Blog: Jennifer Neumann

Jennifer L. Neumann is senior counsel in the Detroit office of Foley & Lardner LLP, and is a member of the firm's Labor & Employment Practice and Automotive Industry Team. Contact her at (313) 234-7142 or
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Potential Legal Pitfalls for Employers Using Social Media

Social media ranging from Facebook, to Twitter, to Linked-In, to individual blogs and even Wikipedia is omnipresent and often takes place at work or is about work. For example, as of March 2012, Facebook had 901 million monthly active users and almost 400 million who used Facebook six of seven days a week. This has spawned employer concerns about productivity, harassment, and defamation. Employers need to be concerned about how they use social media in selecting and retaining employees and in advertising their businesses.

Making hiring decisions is difficult. Employers want to find individuals with the education and skills necessary to perform the job, but also want to make sure the candidate will be the right "fit." Ascertaining the elusive "fit" from a resume and interview can be nearly impossible but, up until a few years ago, that was all that was available to employers. Now, however, many people broadcast extensive details about their lives on social media. Employers are increasingly tempted to review this wealth of information when hiring or even trying to learn more about current employees.

Employers should be careful before taking that leap to social media when making hiring or other employment decisions because it is not legally permissible to consider at least some of the information that may be available on social media sites. For example, employers perusing social media sites may learn of a person's age, disability, race, familial or marital status, or religion -- all information that may not be considered when making hiring or other employment decisions. If faced with a lawsuit, an employer may claim not to have taken any of that information into account when making a decision, but proving this could be difficult. If an employer just cannot live without social media, and wants to avoid the potential that it may learn previously unknown protected characteristics of candidates or employees, consider hiring a third party company to run an online search of the individual in question. Such companies then present a summary of only the information that an employer may lawfully consider during hiring, eliminating the risk that a protected category influences the employer's decision.

Not all accounts are accessible by employers or the third parties an employer may hire to conduct a search. Wise users of social media keep their accounts private and only allow access to approved friends or subscribers. Some employers may be tempted, therefore, to ask an applicant or employee for the password to the account or for the applicant or employee to "friend" the employer on Facebook so the employer can see info about a candidate. Be very cautious before taking this step -- the government is viewing this issue with a critical eye and some states have proposed legislation that would make it illegal to ask for such passwords. In addition, doing so may subject an employer to a lawsuit, just like the one filed a few months ago in Michigan by an individual who was fired after refusing to provide her employer her Facebook password.

Beyond the concerns associated with using social media in hiring and other employment decisions, employers need to be cautious when using social media to advertise their company or product. Several laws apply and govern how employers can use social media for advertising. For example, under the CAN-SPAM Act, companies that send out marketing emails must
provide a means of opting out of receiving the messages. These rules apply to social media posts made by employees at their employer's request as well. The employer might be considered the "sender" and liable if there is no "opt out" method provided. In another example, the FTC Guides regarding advertising require that employees promoting an employer's product on social media sites identify himself or herself as an employee. Failure to do so may result in employer liability.

In short, be careful with social media as the law is just beginning to catch up in this ever- evolving area! Stay tuned for tips for employees and then later for suggestions for employers in developing social media policies.

The Inescapable Past: Job Applicants Beware of Your Social Media History!

Social media is all about speed. Not only does the information get out with the click of a button, but users also don't hesitate to hastily make comments or share pictures. Composing a message that the entire world can access no longer requires writing a book, or utilizing TV or radio stations. Now, while standing in line at the grocery store or relaxing on the couch, a person can type out what's on his or her mind, post it on Facebook, Twitter, or a blog, and have the potential to reach a worldwide audience.

The rate at which people post makes it much more likely that they will say things they may regret later. On some sites, a user may be able to go back and delete comments or posts, but that is not always the case. The posts may potentially be too numerous to deal with, or the website owner may be unwilling to remove the content.

Employees and individuals looking for a new job need to be especially cautious. Employers may review public Facebook profiles or Google the applicant's name to learn more about the candidate. A recent CareerBuilder survey revealed that 37% of companies research job candidates by reviewing social networking sites. My previous post discussed the risks associated with employer social media use, but, regardless, applicants should know that any incriminating posts, pictures, or videos may be disadvantageous to you, if not cost you the job. Some employers even hire companies to do the research for them and create a report card about the applicant. Job applicants can use this to their advantage by posting positive things and portraying themselves in a manner in which they want to be seen.

People who are currently employed should also be wary of what they post. Although a status update complaining about poor pay may be protected concerted activity under the National Labor Relations Act -- even for employers who do not have unions -- other posts poking fun at a boss or embarrassing a coworker may get you a promotion to "newly fired."

Candidates and employees should take charge of their online image. Even if a resume is impressive, employers still won't want to hire someone who is rude or irresponsible as it will reflect badly on the company. It's wise to delete embarrassing or offensive comments, posts, videos, pictures, "likes," or retweets. It is better just to avoid posting anything inappropriate
in the first place. A final option is to delete accounts on Facebook, Twitter, LinkedIn, and any other social media sites. Although extreme, it does solve the matter once and for all (if anything is actually ever really deleted from the Internet).

Don't let social media get between you and a job. With so few jobs available, it is important to take all precautions to ensure you get ahead of the crowd.

Good Social Media Policies and Practices

According to a recent Pew study, 65% of adult internet users claim they use a social networking site, such as Facebook or Twitter. Chances are good that many employees are part of the social networking world. Since the line between personal and professional use is often blurred, employers are wise to implement a social media policy. Policies should be specifically
tailored but there are some general guidelines highlighted below.

1. Avoid being extreme when creating a policy. An absolute ban on use of sites like Facebook may be unrealistic, especially as employers increasingly use social media to accomplish their own business objectives, and employees have easy access to social media offsite. In fact, a recent survey of young professionals and college students found that 56% of them would not accept a job from a company that bans social media or at the very least, would circumvent any such policy.

2. The policy must be worded and implemented in a manner that it doesn't interfere with or deter employees in the exercise of their Section 7 rights under the National Labor Relations Act. Even non-union employees have the right to engage in protected concerted activity, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment or when one employee does so on behalf of a group of employees. Such activity can include, for example, complaining about working conditions or wages. Social media policies that broadly prevent an employee from "disparaging" an employer may be viewed as interfering with or chilling Section 7 rights and, therefore,
unlawful. According to the NLRB, social media policies should provide specific examples of conduct that would violate the policy and have limiting language reassuring employees that their Section 7 rights are still protected.

3. Clearly state in the policy that employees should have no expectation of privacy when using company technology or electronic communication resources. Confirm that the computer/electronic communications systems belong to the employer and should only be used for authorized purposes. State that the company has the right, but not duty, to monitor employees' use of such resources.

4. A policy should include a reminder that the company's restraints also apply to social media. For example, state that the company's sexual harassment and non-discrimination policies apply as equally to social media as they do to in-person communications. Reiterate that company rules regarding trade secret and confidential information apply to information sent via the Internet and that no trade secret or confidential information may be posted on social media. The difficulty with many social media outlets is that once something is posted, it spreads quickly, and is almost impossible to contain. Competitors, news outlets, and bloggers may quickly take note of the information and distribute it even if the initial post is later removed.

5. Instruct employees that they need to identify themselves as employees if they are endorsing a product or service since a failure to do so may result in a violation of, for example, the CAN-SPAM Act or the FTC Guides regarding advertising.

Beyond these provisions, make sure to provide employees with a copy of the policy and collect signed copies from them. This will provide evidence that they were given notice of the rules and consented to the terms.

A well-written policy will not only benefit the employer, but it also provides an employee with greater clarity regarding the parameters of internet use. Make time to train employees regarding the policy and be consistent when applying the policy. Precautionary measures may save you from major problems down the road.