Social Networking in the Workplace: Too Much Information? - ABA YLD 101 Practice Series

By Ebony M. McCain

With the explosion of social networking sites, employers face many challenges regarding how to address employee use of social networking sites. Employers must understand social networking and the possible effects on the work environment. Technology and human resources staff and management must stay informed about the types of sites and their widespread use. This article offers a guide about what employers need to consider when using or regulating use of social networking sites in the workplace.

There are benefits and hazards to social networking sites.

Benefits of Employee Social Networking

  • Positive marketing for employer
  • New business contacts for employee and employer
  • Ability to reach, new, larger network

Hazards of Employee Social Networking

  • Negative comments about employer's workplace, service, product, or clients
  • Content of employee's website or blog may contain negative, discriminatory, or harassing comments about other employees
  • Employee's personal activities or opinions may be embarrassing to the employer
  • Lost productivity
  • Disclosure of confidential company information or trade secrets

Employer Policies Regarding Employee Use of Social Networking Websites
Employers should consider doing the following when deciding how to develop policies regarding social networking by current employees:

  • Review personnel manuals and internet use policies to determine if they need to be updated to address use of social networking sites.
  • Review and update standard employee contract clauses, specifically those regarding confidentiality and trade secrets.
  • Consider whether to block access to some social networking sites. Blocking access would increase productivity and lessen the opportunity for employees to use the employer's computer network for inappropriate web browsing and downloading.
  • Consider business advantages to allowing access to professional networking websites. Professional social networking sites can be a valuable marketing tool for employers and their employees.
  • Communicate to employees that computer use is monitored and access should only be used for work related purposes.
  • Determine if any of the employer's internet use policies or practices are subject to federal, state, or local laws regarding employee privacy and electronic monitoring.
  • If the employer's workforce contains union workers, make sure that the employer's policies and procedures do not violate the National Labor Relations Act ("NLRA").

Use of Social Networking Sites in Employment Decisions:
Employers should be careful when using information obtained from social networking sites in employment decisions. First, be aware that some web postings on social networking sites may not have been created by the person being sought. It is not uncommon for disgruntled individuals to create negative fake web postings about someone else. Also, know that mistaken identity can occur with common names and employers may not have enough information to determine if the person the employer is searching for is the same person who is the subject of the web posting.

Second, obtaining unauthorized access to an employee or potential employee's webpage may violate some websites' terms of use agreements. Employers should read the terms of use agreements and make sure that their use would not violate those agreements. Employees conducting the searches must know what information is being sought and how it should be obtained.

Third, if an employer searches the web regarding its employees or new hires, the practice must be applied uniformly among categories of employees. Any arbitrary distinctions concerning who the employer decides to search for on the web and when searches occur make a perfect recipe for an employment discrimination charge.

Finally, employers should consider whether the benefits of information found on the web outweigh the costs of searching for employees' internet presence. Employers need to think very carefully before deciding whether and how to use information obtained from social networking sites or the web in general. An employer may discover otherwise unknown information regarding an employee or potential employee's membership in a protected class under Title VII of the Civil Rights Act of 1964 or other federal, state, or local anti-discrimination statutes. For example, what if an employee seeking a promotion, reveals on her personal blog information about a disability that the employer believes will require a costly accommodation. Can the employer ignore that information and make the same decision it would have made if it had not been privy to the information? How would the employer prove that it did not consider the employee's disability? Where should the employer draw the line at seeking information on the web about its employees and how should the information be verified? Employers must think of these questions when deciding whether to track its employees on the web.

Social networking sites present new challenges and opportunities for employers. The best advice for employers is to plan carefully and act responsibly when basing any employment decision on information derived from social networking sites. 

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