Social Media: Be Aware of The Law

The utilization of Facebook, Twitter, and MySpace in the place of work is escalating, and employers should know the dangers that occur with it.

Consider this hypothetical: An administrator in control of hiring at her skilled nursing facility needs to find one new staff member and has five resumes, all of which appear ample. What’s the first thing she does? That’s right, she Googles them.

She scans over links to their high school class reunions, possibly some noteworthy events that made the local papers, possibly even a specific thing they have written. At last, she comes to a juicy link-a Facebook web page. Aha! Now here’s the high-quality stuff.

But thinking prior to clicking is the best counsel in this situation. Why? The legalities adjoining the ability to examine an applicant’s Facebook page are not clear cut. Sure, employers are entitled to look at an applicant’s Facebook page, as long as they satisfy certain requirements. And fair enough, employers are entitled to utilize what they uncover there, provided they do not use it in an inappropriate way.

Steer Clear of the Pitfalls
So how does one circumvent the pitfalls of a potential lawsuit plus still get to check out what the job seeker has been Tweeting?

First, the person in pursuit of the information must access the page herself. Hiring a 3rd party to execute it, perhaps in concert with a criminal or credit background check, might be considered an act under the jurisdiction of the Fair Credit Reporting Act, which has notice and discovery specifications that could render this kind of an act illegal.

Second, don’t be sneaky. A lot of applicants will have their Facebook or MySpace blocked. If it’s blocked, it’s blocked. Some of the more creative types may attempt to think of methods to access this data . Establishing an alias account or attempting to guess the passwords are “no nos.” The data needs to be openly available.

Using any type of ruse to access an applicant’s information puts an employer at risk of a privacy lawsuit.

The other method to generate a Facebook lawsuit is to utilize information the wrong way. This point of view is a little stickier. The main point to take into accout is that employers are not able to discriminate against someone. This is as valid in cyberspace as it is in person, which means that using any information learned in a discriminatory method cannot be used. Translation: Using Facebook to screen out applicants based on discriminatory criteria such as race, gender, religion, or disability is utterly unlawful. If caught doing it, employers will be sued.

Enter the Genetic Information Nondiscrimination Act, or GINA. It has a cute name, but it’s a genuine problem for any corporation that wishes to check an applicant’s social media site. Under GINA, an organization is not permitted to collect genetic details about employees or prospective employees.

Notice it states “acquire,” not “use.” There are exceptions to this law, but because it is fairly new, the courts have not given employers much guidance on where the lines are.

The way the law is written currently, if an employer checking an applicant’s Facebook web page discovers that the applicant participated in a multiple sclerosis fund raiser on behalf of her father, that employer has just violated GINA.

The corporation has obtained genetic information, which triggers the violation even if it’s not used in support of any purpose. This is one area of the regulation to monitor while it develops.

Protect Worker Rights
One hopes, by now, most employers know about the significance of social media policies. Together with this in mind, it’s important to understand that employees have rights, the government has laws, and a policy can’t infringe on either.

The National Labor Relations Act (NLRA) gives employees the right to interact in what’s called “concerted activity.” Normally, it protects employees’ rights to talk openly among one another and their employer regarding the terms and conditions of their employment. These protections apply regardless of whether or not the workers are unionized or not.

The risk as an employer is that its policy may be overly broad and infringe on employees’ NLRA rights. There are a number of issues that employers can and should restrict in their social media policies:

• Confidential or proprietary information of the organization along with its clients, patients, and vendors;
• Embargoed data such as launch dates of new forthcoming services or products, release dates, and pending reorganizations;
• A company’s intellectual property, such as new concepts and innovations;
• Explicit sexual references;
• References to prohibited drug use;
• Use of obscenity or profanity; and
• Derision or harassment of any person on the grounds of race, religion, gender, sexual orientation, disability, or national origin.

There is one additional element that many employers would possibly like to have, but must be careful about including in social media policies: restricting employees from disparaging the company or competitors’ merchandise, services, executive leadership, staff, strategies, and business products.

Disparaging comments can be very damaging to a company, but restricting them does come near to infringing on employee rights to comment on their employment conditions under the NLRA. There is some legal authority out there suggestive of these kinds of restrictions are permissible, but it’s still a risky proposition.

Watch Those Testimonials
The National Labor Relations Board (NLRB), the body charged with implementing the NLRA, lately underwent a seismic change in its structure, and many observers expect it to assume a much harder policy against employers allegedly in violation of the act.

As much as employers may need to include this in their social media policy, the practical avenue of action for now is not to. If the regulation adjusts or even gets clarified, having this restriction could put an employer at the unsuitable end of an Unfair Labor Practice Charge before the NLRB.

Better to delay until the issue has been settled.

FTC Weighs In
The NLRA is not the lone federal regulation creating further challenges for employers and social media. The Federal Trade Commission (FTC) has promulgated a statute that requires people providing endorsements or testimonials about a company’s products to disclose any relevant links they might have to the company that produces the product or service. Huh?

In non-legalese, this means that if a corporation develops a brand new widget, its workforce can't run around in secret posting on websites and social media sites this new widget is the greatest ever. The crucial expression in that sentence is in secret. Employees are undoubtedly free to provide endorsements or testimonials about the widget, but FTC regulations demand that they identify themselves as employees of the company.

The intent behind this is that consumers are entitled to take into account this material relevance in assigning credibility to the testimonial.

Devise Social Media Guidelines
There’s a great deal more to disclose about the risks of social media, but all reports must come to an end. A beneficial parting notion to bear in mind is that while social media guidelines are a inevitability, they are not a universal remedy. They will have to be drafted well and enforced correctly. Whether employing social media to understand more regarding prospective new employees or attempting to put into effect a social media policy to give protection to the organization, the path is laden with hazards and legal responsibility.

The World wide web owes its vibrancy in major part to the veil of anonymity individuals feel when they use it. As regulation and technological know-how set out to catch up, employers can no longer merely assume that what transpires on the Internet, remains on the Internet. They need to form meaningful regulations, apply them, and remain alert.