While the PRSA Western District Conference buzz may be wearing off, team HMA spread out to cover the most ground – and we still have loads to share! Naturally drawn to the social media topics, I attended “Social Media in the Workplace” led by John J. Balitis and Lori A. Higuera, attorneys from Fennemore Craig’s Labor & Employment Practice Group.
I entered the breakout session thinking like a PR pro – nervous that I was about to hear my Pinterest addiction will have Disney, Wal-Mart and the FCC all slapping me with a copyright suit any day now.*
In reality, I came out of the session still thinking like a PR pro, but learned a lot about the issues faced by human resources.
As a PR professional and chronic over-Tweeter, I always see the benefit on social media for businesses. Not only can employees instantly increase sharing, but they are some of the strongest brand advocates - and as the Internet has shown us, employee treatment and moral is becoming as important as, if not more than, customer satisfaction.
Still, many employers are caught between “1984” and a “Brave New World” when it comes to indulging their staff’s Facebook pleasures (although studies continue to show productivity is up among employees are allowed access to their personal social media profiles.) However, when it comes to hiring, firing and work ownership, legal issues can have employers taking a step back before diving in.
Over-sharing on social media has been used to terrify recent college grads into cleaning up their online presence for years, and it goes without saying, blatant illegal activity found on one’s profile is a justifiable reason for not hiring that individual. However, using information gathered from an applicant’s social media profile to influence a hiring decision can sometimes backfires.
For example, when narrowing down the qualified candidates, the employer may come across a pregnancy announcement on one of the hopeful’s Facebook profile. While clearly this isn’t “private” information, it can definitely influence the employer’s decision. However, if the applicant did not disclose that information during the interview, the employer has no right to let that information affect the hiring decision – something that can be difficult to prove if taken to court for unlawful discrimination.
What’s an employer to do? Rather than have the HR department review the person’s social media, have a social media team member or another trusted supervisor be the person to assess the applicant’s online presence. That way they can report back any major red flags without subjecting the applicant to unfair (be it unintentional) bias.
As stated before, employees’ social media presence can help make or break a brand. But allowing employees to use social media while on the job doesn’t have to be an all-or-nothing VIP pass. Employers who friend/follow/link to their staff walk a fine-line: An employer needs a clear idea of what they seek to benefit from by connecting with their employees – be it gauging opinions, monitoring productivity or finding unsavory evidence. Meanings can be construed, or possibly worse, something taken offensively may not be ground for dismissal, which could result in a number of headaches.
Before tackling any internal social media issues, companies should have guidelines and policies for their employees to adhere to. Not only should this cover what can and cannot be said about the company, but should address what aspects of employment – be it terms and conditions, wages, safety issues, etc. – can be discussed openly.
“But,” you ask, “what about the Fir—“
I’ll stop you right there. As much as we’d like to treat the First Amendment as a big, comfy get-out-of-jail free card, there are plenty of exceptions. Defamation, threats, leaking of confidential information and cyber-bulling are all examples of things NOT covered by the First Amendment. First Amendment rights also do not cover agreements made in employment contracts – most of which prohibit discussing personal work information that could be harmful to the company or its employees.
When leaving the job:
No matter how amicable the break-up is, there is always the awkward, if not ceremonious, dividing-of-the-things. And just like any relationship, the more sharing that was done, the more difficult it can be to pinpoint who owns what.
Again, this is where clearly stated social media policies need to be put into place. Unfortunately for the departing employee, most content created while on the job, or while using company property, is considered belonging to the company. This rule has been pretty standard…but it would be out of social media’s nature not to throw a wrench in the system.
While employees may be creating content and sharing on their social media accounts during work time, the accounts themselves do not belong to the company (and more and more states are passing laws forbidding employers to request their employees’ passwords.)
For example, a tech blogger was sued by his former employer when he changed his Twitter handle – which, while it had the company name, was unique to him – and took his accumulated followers with him. Laying the groundwork for what are sure to be many suits to follow, the lawsuit was settled with few details given, although we know the company did not get the report $2.50 they were asking for each follower gained during his employment time.
Although it may be an extreme example, it shows how the blurring line between professional and person lives, which is largely in-part fueled by social media, will play a large role in future content ownership battles.
While I’d like to think we are getting out of the “new era of social media” where everything is trial and error and proceeded with caution, the slow-moving process of the law will certainly take some time to catch up with the digital world. One thing is for certain – it’s not going away, and depriving employees of their social media platforms isn’t likely to benefit you. Whether you are the CEO or a part-time intern, make sure that everyone associated with the business is on the same page in the social media rule book.
*A possible lawsuit is still keeping me up at night. Luckily I also attended “The Legal Side of Blogging: 10 Questions to Ask Before you Hit ‘Publish’” by Ruth Carter, Esq. – stay tuned for a totally original and fair-use/permission-granted blog post in the near future!