Blog: Jennifer Neumann

Social media is a necessary minefield for entrepreneurs and jobseekers to navigate. While voiding the past isn't always possible, Foley & Lardner LLP attorney Jennifer Neumann gives the rundown on proper usage of this tool.

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.