April 05, 2010
Update: Legal Risks for Employers Who Use Social Networking Web Sites
A study suggests that, more than 80 percent of U.S. adults who go online use social media at least once a month, and that half of those participate in social networks such as Facebook. We continue to be more surprised, however, by the other conclusion contained in the study: "ample resources and polls suggest that companies are not addressing potential implications to their business. In this space last fall, we addressed a variety of legal and business risks facing employers who use social networking Web sites to facilitate their employment decisions. The active dialogue since that time has prompted us to revisit and expand on some of the thoughts discussed there.
While social networking sites provide innovative, informal and immediate ways for employers and employees to communicate, the use of such Web sites also may prompt individuals to overlook norms for appropriate workplace conduct that have developed before the recent increase in online networking. This phenomenon may be caused by a variety of factors, including the instantaneous nature of electronic communications and the ability of individuals to interact without physically seeing or speaking to each other.
An employer or employee's migration away from well-established guidelines and policies addressing professional behavior naturally poses risks for employers. In this article, we focus on a number of issues in addition to those we addressed in our previous article. As with our previous article, we also identify areas where employers should consider updating their policies to account for the risks posed by the use of social media, in order to ensure that their guidelines for professional conduct fully reflect the modern-day workplace.
One form of social networking that has become increasingly popular is the use of sites such as LinkedIn for professional networking. LinkedIn permits members to create a profile highlighting their current position, former places of employment, professional accomplishments, and career interests. LinkedIn also provides members the opportunity to request performance-related feedback from current or former employers, including managers and superiors, who also are LinkedIn members.
Understandably, supervisors who receive such solicitations may feel obligated to respond favorably in order to avoid possible embarrassment for the employee or themselves in a public setting; however, before responding to such requests, supervisors should understand that a decision whether or not to provide this type of positive feedback could have negative consequences in the employment setting.
For example, a manager who comments favorably regarding a subordinate's work on LinkedIn may be accused of contradicting possibly less favorable reviews of the subordinate's performance made in a confidential evaluation completed at work. If the employer subsequently were to take an adverse employment action against the employee, the employee could point to the arguably inconsistent statements as circumstantial evidence that the adverse action was not supported by a legitimate business reason, but rather was taken because of unlawful discrimination or in retaliation for protected activity.
While the employer certainly could correct any misimpression caused by the favorable comment, the employee certainly will argue that any inconsistency between the LinkedIn comment and the performance evaluation creates an issue of fact precluding summary disposition of the employee's claims. To avoid this risk, employers may wish to consider adopting policies which preclude managers from providing recommendations for current or former employees on social networking Web sites such as LinkedIn.
Modifying the employer's social networking policy would create consistency with more traditional human resources policies which frequently preclude managers from responding directly to requests for letters of recommendation from former employees. Traditional policies typically provide that all requests for letters of recommendation must be forwarded to the company's human resources department which, in turn, respond with information limited to the employee's dates of employment, positions held and final salary. Thus, prohibiting direct responses by supervisors on LinkedIn would make the employer's social networking policy consistent with longstanding approaches to requests from former employees for letters of recommendation.
Employers should be aware that employees' use of social networking sites may increase an employer's risk of being subjected to harassment claims. Because communications through social networking sites allow for impersonal, "non-face-to-face" interaction, individuals may not perceive that their electronic communications are subject to the usual guidelines governing appropriate professional conduct. Employees also may become emboldened by their pseudo-anonymity to act in ways they otherwise would not—in essence taking on a new personality.
Likewise, a lack of established guidelines governing the new methods for communication provided by social networking sites also may contribute to an increased risk of inappropriate employee behavior. For example, a Facebook "poke" causes an alert to be sent to the recipient notifying them they have been "poked" along with the identity of the sender. The inherent ambiguity in a Facebook "poke" may actually foster its impermissible overuse. In 2009, a Tennessee woman was arrested and jailed after violating an order of protection—which prohibited communications with another woman—after she used Facebook to "poke" the protected individual.
Although courts have yet to address this issue in the employment context, employers should be aware that communications occurring through social networking sites can, under certain circumstances, rise to the level of harassment. Employees will almost certainly argue that unwanted contact by supervisors or co-workers may satisfy the elements of a hostile work environment claim, requiring that the workplace be "permeated with discriminatory intimidation, ridicule, and insult…that is sufficiently severe or pervasive to alter the conditions of the victim's employment.
Courts have recognized that "even a single episode of harassment, if severe enough, can establish a hostile work environment. Employers may argue that they were not on notice of such events, or that co-workers were engaged in private, off-work activity when they communicated on social networking Web sites. However, circumstances conceivably could arise where such conduct could spill into the workplace. Imagine the reaction of an employee if a co-worker posts exceedingly graphic pictures and/or comments about a fellow employee on a social networking Web site. After an employee complains to the employer about such conduct by a co-worker, the employer may have no choice but to react, whether or not the conduct rises to the level of unlawful sexual harassment.
Motivated by similar concerns, a number of states have introduced legislation that provide penalties for sexually offensive or harassing communications perpetrated through social networking sites. See, e.g., Social Networking Safety Act, H.R. 3757, 213th Leg. (N.J. 2009); Online Harassment, TEX. PENAL §33.07 (2009); H.R. 1427, 95th Leg. (Miss. 2010). Given the legislative concern regarding harassment perpetrated through social networking sites, employers may assume that similar issues arise in the workplace and should consider revising their harassment policies accordingly.
As we noted in our previous article last fall, a huge number of employers are using social networking Web sites to screen job candidates. We emphasized the need for employers who use social networking Web sites in this manner to take care to avoid applying varying selection criteria based on sex. Since our last column, commentators have identified additional risks from using social networking Web sites arising solely from variation in the use of social networking sites by individuals in different demographic categories. For example, a recent study shows that both Caucasians and Asians are overrepresented on Facebook and LinkedIn relative to the Civilian Labor Force, as defined by the U.S. Census, while Hispanics are disproportionately underrepresented on both sites, and African Americans are underrepresented on LinkedIn.
Additionally, individuals between the ages of 18 and 34 are overrepresented on Facebook but underrepresented on LinkedIn, while individuals over age 50 are underrepresented on Facebook and overrepresented on LinkedIn. Finally, women have been shown to be overrepresented on Facebook while men are conversely underrepresented on Facebook relative to the Civilian Labor Force. While employers could argue that a comparison between the demographics of the Civilian Labor Force and the usage of social networking Web sites is inappropriate for particular occupations, certainly any such discrepancies may influence employers to consider carefully the extent to which they will use social networking Web sites for screening potential job applicants.
Employers who are contemplating whether to use social networking sites as a sole basis for recruiting may wish to analyze whether they may be excluding qualified individuals who do not have access to or who elect not to use social networking technology. Employers may avoid such risks by using multiple recruitment methods in addition to recruitment through social networking sites.
An employer's use of an employee's information posted on a social networking Web site could establish a basis for persons injured by the employee in the course of employment to argue that the employer is liable for negligent hiring and/or retention. "A cause of action for negligent hiring or retention requires allegations that the employer 'knew or should have known of the employee's propensity to commit injury,' or the employer failed to investigate a prospective employee notwithstanding knowledge of 'facts that would lead a reasonably prudent person to investigate that prospective employee'. Accordingly, if an employer read information on a job candidate's social networking site that could subsequently constitute evidence of a "propensity to commit injury," and the candidate subsequently injures another person, the injured person may seek to hold the employer liable for negligent hiring or retention.
Among the challenging issues that arises from this hypothetical fact pattern is the question of exactly how employers can identify information that demonstrates a "propensity to commit injury." For example, one can imagine that employers could be faced with having to decide whether the questionable remarks were said truthfully or in jest—and more importantly, how a court would view such information. One possible way to avoid this issue is for employers to define precisely the nature of the information recruiters or other human resources personnel will seek to obtain from an employee's social networking Web site, and affirmatively state that no other information will be sought or considered.
Another prophylactic measure is for employers to separate those who will actually access the employee's social networking Web site, from those responsible for making potentially adverse employment decisions regarding the employee. In that way, those making decisions should not be charged with knowledge of any potentially questionable information.
As we noted in our previous article last fall, growing numbers of employers are visiting prospective and current employees' social networking Web sites in connection with employment. However, as employers weigh the pros and cons of using social networking Web sites for this purpose, some employers might opt to refrain completely from visiting such Web sites. Other employers who choose to visit candidates' social networking sites or otherwise use such sites for recruiting purposes should, at the very least, educate themselves about the risks discussed above and in our previous article, and consider taking prophylactic measures to mitigate any such risks.
In addition to the guidelines we provided in our October 2009 article, employers also may consider adopting policies:
• prohibiting supervisors from evaluating, recommending or otherwise commenting on subordinates' job performance on social networking sites such as LinkedIn;
• cautioning employees that they may be subject to discipline up to and including discharge for harassing, intimidating, or demeaning co-workers or customers on social networking Web sites;
• directing human resources staff not to rely exclusively on social or professional networking sites to recruit candidates, and if such sites are used, to do so in conjunction with a variety of other recruitment methods which encompass a broad range of sources;
• setting up a procedure that will define what personnel are authorized to access a job candidate's or an employee's social networking Web site for employment purposes, and defining precisely the categories of information the employer will seek to obtain from the social networking Web site; and
• directing that where managers do refer to employees' social networking Web sites for employment purposes, that managers comply with all employment policies and practices of the employer including the duty to report to management any information about an employee that may reflect a propensity by the employee to injure others.
Jeffrey S. Klein and Nicholas J. Pappas are partners at Weil, Gotshal & Manges. Jason E. Pruzansky and Andrea Y. Loh, associates at the firm, assisted in the preparation of this article.
This article is reprinted with permission of the April 5, 2010 issue of the New York Law Journal. © 2010 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.