NEWPORT, R.I.—If Facebook were a country, it would be the fourth largest on the planet, its population of 400 million users outstripping the U.S. population of 315 million, and its allure exerting an irresistible attraction on participants of every stripe—including employees at work.
That was the message of Attorney Joe Whelan of law firm Hinckley, Allen & Snyder, who spoke at the 2010 Tri-State SHRM Conference here. The conference, a gathering of about 300 HR professionals, took place April 7-9, focusing on the role of human resource professionals in challenging times.
Two of those challenges—the nation’s economy and the intricacies of the newly enacted health care reform legislation—attracted a major share of attention at the conference. Whelan’s session focused on a workplace challenge from another front: burgeoning social web sites that not only affect employee behavior and productivity but also expose the company to new areas of liability.
Whelan’s message: “You can’t stop employees from going to social sites like Twitter, MySpace, Facebook and LinkedIn, but you can manage the behavior,” he stated.
“The biggest problem is to regulate the activity,” he continued. Not only is it a major distraction during work hours, it also exposes companies to potential liability for claims of discrimination, defamation, retaliation and harassment and problems stemming from union organizing activities and exposure of trade secrets, according to Whelan. He urged HR professionals to consider these issues with social media:
Discrimination. Using information from social sites such as Facebook in job decisions can give rise to claims of discrimination. Whelan gave the example of an employer who visits a job candidate’s Facebook page, learns that a job candidate frequented lesbian bars, and uses that information as the basis to decline to hire her. Examining candidates’ Facebook pages puts the employer on notice of the information in the site and exposes the company to liability for discrimination.
“You’re deemed to have knowledge of this information, and it’s very difficult to prove you weren’t relying on that knowledge when you made the employment decision,” Whelan pointed out. “The mere fact that the employer viewed the site is circumstantial evidence of discrimination. You can’t allow managers to make decisions on that basis,” he concluded.
Defamation. Defamation charges may stem from employees’ online remarks about employees or other companies. Employee statements can be imputed to the employer, Whelan commented. For example, if a salesperson can disparage a competitor on a social network, the employer is potentially liable for the consequences of the statement. “In one real situation,” Whelan said, “an employee posted a ton of negative information about his employer on his blog. What can the employer do?”
The answer: Tell the person to shut it down or they’re fired. Employers shouldn’t be afraid of that, Whelan said, but they should also know that if the information revealed potential legal violations, the employee might then go to the government as a whistle-blower.
Whistle-Blowing. State and federal laws bar employers from retaliating against employees for reporting legal violations, Whelan pointed out. Connecticut, Massachusetts and Rhode Island have legal protections for whistle-blowers in the private and public sectors—Massachusetts by court decision and the others by statute.
Sexual harassment and cyber-bullying. Social sites make possible a new form of sexual harassment when the sexual advances, behavior or requests for favors are conveyed electronically. The sites allow cyber-bullying, which Whelan defined as leaving offensive comments about co-workers on blogs or other social networking sites. On sexual harassment claims, if the harasser is a manager, the company is liable for the behavior whether or not it knew of the conduct. If the harasser is someone without supervisory authority, the employer is liable if it knew or should have known about the behavior and failed to take prompt remedial action.
Union activity. Employees may use the networks as a means of improving the terms and conditions of employment, Whelan pointed out, and labor laws protect them when they engage in union organizing, even if it’s just complaining about working conditions. At the moment, under a decision of the National Labor Relations Board (NLRB), employers can bar that activity by promulgating and enforcing blanket “business-only” e-mail policies. But that rule is probably about to change, Whelan stated, because the NLRB, unlike other tribunals, is not bound by precedent.
Misuse of trade secrets. If an employee posts trade secrets or other confidential information, the information then becomes public and the company has lost its protectable interest. Companies should develop policies governing exposure of company secrets and gossip on business-related and personal social media sites, Whelan said.
State privacy laws. Massachusetts and Rhode Island have broad statutes protecting the right to privacy, and employers in those states should make it clear that no one has an expectation of privacy if they’re using the employer’s computers for social networking. Company policy should state that if employees use company computers, the company is entitled to look at employees’ web presence.
Connecticut employers, on the other hand, are required legally to tell employees that they will monitor them, including by checking their web presence on social sites, and to get their consent. A Connecticut employer who lets employees know that their communications will be monitored is considered to have the equivalent of consent, Whelan stated.
What to Do
Employers should set up written social networking and blogging policies that identify expectations clearly regarding use of social networking sites, highlight the risks of such postings, and explain discipline for policy violations. The policy should:
- Cover broadly all publicly accessible communications made via the Internet, including communications made on blogs, discussion forums, newsgroups, social networking sites and e-mail distribution lists.
- Bar postings that contain defamatory, harassing or discriminatory content or that violate existing employer policies.
- Prohibit employees from disclosing confidential, sensitive, proprietary, top secret or private information about the company, its executives, employees, customers, partners, suppliers and other third parties.
Because of the harassment connection, Whelan advised that the policy should become part of the company’s anti-harassment rules. Employees should be required to sign and date a copy of the policy, acknowledging that they have read it, understand it and agree to comply with it, Whelan concluded.
Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years. She is a member of the Human Resource Association of Central Connecticut.