Don’t Deny It, Social Media Is Mainstream—and Full of Pitfalls

Don’t try to deny it, social media is mainstream now, says Attorney Jonathan Segal, and its influence is only going to grow. Before too long, the workplace will be 75 percent Millennials, and they use social media with a vengeance. (By the way, Boomers aren’t that far behind, he adds.)

Social Media includes, for example:

• Social Networking sites, such as Facebook and Yammer
• Video and photo-sharing websites, such as YouTube and Instagram
• Micro-blogging websites, such as Twitter
• Blogs, such as Huffington Post
• Online forums, such as Google groups

Plus, whatever was developed in the last 20 minutes, says Segal. In your policy, be sure to say “now or to be developed” when listing examples of social media.

Segal, whose tips came during a wide-ranging session at SHRM’s recent Employment Law and Legislative Conference, is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group. He is also the managing principal of the Duane Morris Institute.

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Hiring/Promoting

What’s the concern with checking social media sites as part of the hiring process? You will gain access to information about the protected status of an applicant, for example:

• Race
• Disability
• Age

It is potentially dangerous for employers to be aware of this information, because knowledge may be seen as basis for adverse employment action.

What are the benefits?

• You’ll expand the applicant pool.
• You likely will have better access to passive candidates.

Segal’s Recommendations:

• Never ask for passwords, even casually (“I’d like to see your Facebook page”).
• Be aware that12 state laws prohibit this in the employment context.
• Note that the Federal Stored Communications Act:
  • Prohibits unauthorized access to stored messages, and
  • Creates risk in all 50 states.

Segal’s guidelines for managers on reviewing:

• Facebook: prohibition—do not look
• Twitter and LinkedIn: look with caution

Best practice: a review of public postings by HR. This should be done at the end of the process. At that point, there is a lower legal risk, but still potential for a business reward if you find, for example, homicidal intentions. If you don’t hire someone because of what appeared on his or her Facebook page, print out the page and circle the offensive material, noting “inappropriate.”

Is this risky? asks Segal. Yes, but there is a risk in not looking as well.

Finally, he says, be sure that your searches are consistent—all members of a rational group are researched.

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Marketing and Sales

The key legal issue is the FTC’s Guidelines on Promotional Endorsements.

The general rule is that you must disclose employment or other affiliation. (Otherwise, it is a material omission.) The prohibition is not limited to employer networks; it also applies to employees who use personal networks to post promotional material.

It is important to address this in your policy, Segal says.

When is the context promotional?

• Blog content?
• Like on LinkedIn?
• Comment on LinkedIn?
• Post on LinkedIn?
• Like on Facebook?
• Comment on Facebook?
• Post on Facebook?
• Tweet?
• Re-tweet?

Arguably, all of the above could be promotional, Segal says.

Is Retweeting Work?

With nonexempt employees there is a risk with off-duty “promotions.” For example, the sales and marketing manager says, “Go home and like us and retweet us.” That is work and you should create a payment plan.

In tomorrow’s Advisor, social media recommendations and endorsements, plus friending and unfriending, and we introduce a guide specially written for small, or even one-person, HR departments.