June 16, 2010
A social-networking policy is one of a company's most effective lines of defense against the risks presented by social media. The authors suggest elements of such a policy as well as discuss some of challenges the issues brings to the workplace.
This article accompanies Facing up to Obama.
According to a recent Forrester Research survey, more than four in five U.S. online adults use social media at least once a month. Moreover, another recently commissioned survey suggests that almost 80 percent of job recruiters and hiring managers in the United States have reviewed online information posted to social-networking sites and blogs to screen job candidates.
Yet, despite the widespread use of social-networking Web sites by both employers and employees, recent polls suggest that employers are not adequately addressing the business implications of using social networking Web sites.
Legal and Business Risks
The potential legal and business risks arising out of employers' and employees' use of social-networking Web sites are abundant, as we discuss in detail in Weil, Gotshal's Fall 2009 and March-April 2010 Employer Update. These include, but are not limited to, risks that:
* Employers viewing their employees' or job candidates' social-networking Web sites may provide the predicate for claims under the employment-discrimination statutes or a state's legal activities laws, where an employer takes adverse action against an employee immediately following such viewings that the employee or job candidate claims was because of a legally protected status or activity;
* Employees may assert unfair-labor-practice charges under the National Labor Relations Act to the extent their employers take adverse employment actions shortly after viewing employees' union-related postings on social-networking Web sites;
* A manager may provide performance-related feedback on a social-networking site such as LinkedIn, that an employee may claim is inconsistent with less favorable feedback given in the employer's performance-evaluation process, which an employee may use as circumstantial evidence of an improper motivation for an adverse action;
* Employees may argue that their employers violate a social-networking Web site's terms of service or an employee's common-law privacy rights by accessing such a Web site to conduct checks on prospective or current employees;
* Employees may assert claims against their employers based on co-workers' allegedly harassing communications on social-networking sites;
* Public media may focus unwanted attention on employers that take adverse action against employees using information obtained from their employees' social-media Web sites;
* Employers that rely solely on social-networking sites to recruit job applicants may be excluding qualified candidates who do not have access to or who elect not to use social-networking technology.
To be sure, there is no one-size-fits-all approach to addressing the multitude of legal issues arising out of employers' and employees' use of social-networking Web sites.
A particular company's approach to dealing with these issues largely will depend on its tolerance for risk, the importance of Web-based communication to its business objectives and the realities of the industry in which it operates. For example, while a traditional manufacturing company may prefer to limit its use of social-networking sites, such behavior is anathema to the culture at certain high-tech and media companies, that actively encourage their employees to use social media to promote company products and services, or their company's employees themselves.
Mitigating the Risk
Despite the fact that a well-written social-media policy provides one of a company's most effective lines of defenses against the risks presented by these Web sites, surprisingly, a recent report suggests that 69 percent of U.S. companies do not have such a policy in place.
A cogent social-networking policy will both educate employees as to the company's expectations of the appropriate norms for online behavior, and give managers and HR personnel guidelines on how to prudently leverage the information obtained from social-networking sites.
Employers seeking to craft a social-media policy or improve upon an existing one should consider including language reminding employees that their conduct on social-networking Web sites may reflect upon the company.
Employers also should include language that encourages employees to exercise good judgment in all of their Web-based communications. Such a clause might read as follows:
Company respects the legal rights of our colleagues in all jurisdictions in which we operate. In general, what employees do on their own time is their affair and Company recognizes that you may wish to publish private content on the Internet, including, but not limited to, social-networking Web sites. However, any activities in or outside of work involving the Internet (even if content is created, updated, modified or contributed to outside of working hours or when using personal IT systems) are prohibited if they affect or could affect Company's reputation or business interests, your job performance or the performance of others (in the reasonable opinion of Company) in any negative way.
Additional guidelines employers may consider adopting include:
* 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 resource 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 that 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;
* 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;
* Requiring employees whose affiliation with the company is evident to caveat their remarks on the Web as reflecting only his or her own views and not necessarily the views of the company or other employees;
* Reminding employees that they may not share confidential, proprietary or private information about the company, its employees or products on the Web;
* Stating that company trademarks may not be used on the Web without prior written permission from the company;
* Informing employees that they may not sell or promote products or services on the Web that would compete with company products or services; and
* Advising employees that they may consult with the human resources department with any questions about the company's views with respect to the rules of the road for Web communications and the employer's legitimate business interests.
Social Media's Generational Divide in the Workplace
We were struck by a recent op-ed piece in the New York Times by David Brooks that discussed how texting and other new forms of communication are drastically altering the way people cultivate social relationships.
Of course, these are almost exclusively young people. This generational divide also is evident in the way different generations use the Internet.
Research shows that older people generally use the Internet for research, banking and shopping; younger people use it more for relationships and communicating. This new form of relating and communicating becomes part of an individual's DNA, and will impact how he or she interacts in the workplace.
All of this got us to thinking about how this impacts the workplace, not in the obvious ways of sexual harassment and the like, which we addressed in a previous Employer Update, but the more important and subtle question of basic human interaction.
We believe that we are facing a generational divide that dwarfs the seismic shift in the 1960s. Back then, the divide was about values, politics and lifestyle. Critically important, but ultimately less significant than how we relate to each other and form basic human bonds.
Older workers certainly have learned to use computers and other critical new technology to do their job. They have adapted to "corporate casual" forms of dress. And many will text and use social-networking sites.
The question, though, is how many will adapt to those mediums in a way that alters how they form and maintain relationships such that it becomes the core of their relationship mechanisms, rather than ancillary?
The way we form and maintain relationships tends to be deeply imprinted early in one's life and, while not immutable, it is difficult to change. Nor will it be obvious to many people that they need to change.
If we are right, this means that younger people are going to have difficulty figuring out how to connect with older workers who can be important to their careers as mentors or critical parts of their network.
Conversely, as the next generations assume positions of responsibility supervising older workers, the older workers are going to have difficulty connecting with their supervisors if they do not realize that the very mechanism for forming and maintaining relationships has shifted on them.
It is important to realize that the change being created by texting and social-network sites is not just about how one finds new relationships, but also how one relates to one's friends and acquaintances.
The social framework of the workplace is going to shift as younger people make up a larger portion of the workforce and assume greater responsibility in organizations. Consequently, older workers are likely to find it more difficult fit in.
This poses not only the legal risks of age discrimination claims, but perhaps the great diversity challenge of the next couple of decades.
Jeffrey S. Klein, Nicholas J. Pappas, Jason E. Pruzansky are with Weil, Gotshal & Manges. Klein, a partner in the New York office, was named one of Human Resource Executive®'s Most Powerful Employment Attorneys for 2010.
This article was posted on Human Resource Executive magazine's online edition, www.HREonline.com, on June 16, 2010.