In yesterday’s Advisor, we covered the stunning new NLRB stance on social networking; today, attorney Thomas Deer’s advice on dealing with social media and non-competes, plus an introduction to the one-stop HR solution center.
Deer, a shareholder in the Chicago office of law firm Ogletree, Deakins, Nash, Smoak & Stewart PC, was a featured speaker at BLR’s National Employment Law Update held recently in Las Vegas. [Go here for the beginning of his comments.]
Social Media and Restrictive Covenants
Social networking can still be an issue once an employee leaves the company, Deer says. Take, for example, a sales employee who is prohibited from soliciting customers of her former employer and goes to work for a competitor.
While it’s clear that she couldn’t send a letter out to those customers announcing her relocation and extolling the virtues of her new employer, what happens if that employee updates her LinkedIn profile and makes positive comments about her new employer on her profile?
Although she isn’t sending direct messages to the clients she is connected to, her “passive” actions ultimately have the same effect.
Courts are so far silent on this issue.
To prevent such problems, says Deer, during the exit interview consider asking about the employee’s social networking activity as it relates to his or her employment. Take that opportunity to remind the employee of the obligation not to compete or disclose confidential information through any forum, including those found on the Internet.
HR budget cuts? Let us help. HR.BLR.com® is your one-stop solution for all your HR compliance and training needs. Take a no-cost, no-obligation trial and get a complimentary copy of our special report Critical HR Recordkeeping—From Hiring to Termination. It’s yours—no matter what you decide.
Harm to a Third Person by an Employee’s Postings
The variety of causes of action here are only as limited as the fertile mind of a creative plaintiff’s attorney, but can include claims for defamation to invasion of privacy, Deer says.
The employer’s concern in this situation is being held responsible for the words or actions of its employees. The exact scope of that liability is still to be determined, but obviously will be heightened to the extent that the employer supports, promotes, or condones the employee’s activity, thereby giving the impression the employee is acting on its behalf.
Violating a Law—Inadvertently or Otherwise
To make matters worse, sometimes the disclosures or statements made in blogs violate a law, Deer says. For example, HIPAA requires confidentiality for protected health information (PHI). One can imagine the chagrin of venerable health-provider Kaiser Permanente when its initial mistake in posting PHI of about 140 of its patients was magnified by one of its employees, (Elisa Cooper, who called herself the “Disgruntled Diva” online) when she publicized the error by providing links to the information on her blog.
The Employer’s Use of Cyber-Information in Employment Decisions
More and more employers are using the Internet to check on potential employees. Many employers find the information provided on these sites to be particularly helpful because they perceive that the information displayed reflects a more accurate representation of the applicant.
However, there’s great danger here as well, Deer says. Invasion of privacy and discrimination are particular legal hazards.
Social media is increasingly a challenge, what with the NLRB, stretched budgets, and over-worked people. And, of course, dealing with social media is just one of what, a couple of dozen recurring challenges you face? What about FMLA intermittent leave, overtime, ADA accommodation, and sexual harassment, to name just a few?
You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
Find out what the buzz is all about. Take a no-cost look at HR.BLR.com, solve your top problem, and get a complimentary gift.
Solicitation. In line with our general nonsolicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.
We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)
You can examine the entire HR.BLR.com program free of any cost or commitment. It’s quite remarkable—30 years of accumulated HR knowledge, tools, and skills gathered in one place and accessible at the click of a mouse.
What’s more, we’ll supply a free downloadable copy of our special report, Critical HR Recordkeeping—From Hiring to Termination, just for looking at HR.BLR.com. If you’d like to try it at absolutely no cost or obligation to continue (and get the special report, no matter what you decide), go here.