Casual References
Casual references on LinkedIn or other professional social media sites pose legal risks:
- Defamation (if they are negative and untrue).
- Misrepresentation (if they are positive and untrue).
- Evidence of pretext in an EEO claim (if you terminate for poor performance but you’ve written a glowing recommendation on LinkedIn).
Segal’s recommendation: Make clear to managers:
- The “no reference” rule applies to social media.
- Potential exceptions, if any, must be approved by HR.
What about “endorsements” on LinkedIn? An endorsement equals a recommendation, says Segal. Plus, there are trade secret considerations. Endorsement is inconsistent with the trade secret status of the identity of the customer or client. Give guidance to sales people on whether and how to seek endorsements, says Segal.
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.
Purely Personal Social Media
On purely social media, employees should make clear that their opinions are personal and not on behalf of their employer (for example, in a political blog). Make it explicit that the employee should not refer to the employer by name in the disclaimer, says Segal.
Note, however, that the disclaimer may not be adequate if the individual is publicly associated with the employer.
Ownership
Who owns the social media information? Consider making it clear in your policy that the employer owns content the employee creates using company social media platforms—it’s work for hire.
Are class action lawyers peering at your comp practices? It’s likely, but you can keep them at bay by finding and eliminating any wage and hour violations yourself. Our editors recommend BLR’s easy-to-use FLSA Wage & Hour Self-Audit Guide. Click here for details.
‘Friending’ Subordinates/Constituents
Once again, you’re going to find out information you don’t want, information about illegal and other conduct of potential concern. For example:
- Illegal conduct—illicit drug use
- Dangerous—excessive drinking
- Protected status:
- Religious beliefs
- Medical treatment
- Domestic partner
At that point, silence may be seen as condoning illegal or dangerous conduct (but getting involved is potentially problematic too). And, again, knowledge of EEO information may be seen as the basis for an adverse employment action (even when it is not).
‘Friending’ Subordinates/Constituents
Segal recommends that employers consider training/guidelines/restrictions on “friending” subordinates or others over whom a person has institutional authority.
Unfriending
If you are concerned about the issue of unfriending people at work, Segal recommends that you unfriend all colleagues: “I have made a conscious decision that I won’t friend people at work. I wanted to tell all my colleagues; please do not take offense.” And then you unfriend them all.
Linking In with or Following Colleagues
This status has some beneficial aspects, says Segal:
- Mentoring tool—How is the subordinate using social media?
- Retention tool—May show evidence of potential departures (individual or collective)
- Early warning signs of potential bias (social media is a form of social inclusion). For example, a male boss linked to seven male subordinates but not the one female subordinate.
- Influence barometer
- Evidence of improper references of employee or endorsements by customers or clients
Employment Policies Apply
Finally, says Segal, be sure that you make clear the application of other employment policies to social media (professional and personal). For example:
- Confidentiality policy
- Harassment policy
Retweeting time as hours worked, overtime, the “regular rate.” Wage and hour should be simple, but it’s not. And your supervisors may be trying some inventive approaches like working people off the clock or through their unpaid lunch period. How can you tell if they are doing it right or being “inventive”?
There’s only one way to find out what sort of wage and hour shenanigans are going on—regular audits.
To accomplish a successful audit, BLR’s editors recommend a unique checklist-based program called the Wage & Hour Self-Audit Guide®. Why are checklists so great? It is because they’re completely impersonal, and they force you to jump through all the necessary hoops, one by one. They also ensure consistency in how operations are conducted. And that’s vital in compensation, where it’s all too easy to land in court if you discriminate in how you treat one employee over another.
Experts say that it’s always better to do your own audit and fix what needs fixing before authorities do their audit. Most employers agree, but they get bogged down in how to start, and in the end, they do nothing. There are, however, aids to making the FLSA self-auditing relatively easy.
What our editors strongly recommend is BLR’s Wage & Hour Self-Audit Guide. It is both effective and easy to use, and it even won an award for those features. Here are some reasons our customers like it:
- Plain English. Drawing on 30 years of experience in creating plain-English compliance guides, our editors have translated FLSA’s endless legalese into understandable terms.
- Step-by-step. The book begins with a clear narrative of what the FLSA is all about. That’s followed by a series of checklists that utilize a simple question-and-answer pattern about employee duties to find the appropriate classification.
All you need to avoid exempt/nonexempt classification and overtime errors, now in BLR’s award-winning FLSA Wage & Hour Self-Audit Guide. Find out more.
- Complete. Many self-audit programs focus on determining exempt/nonexempt status. BLR’s also adds checklists on your policies and procedures and includes questioning such practices as whether your break time and travel time are properly accounted for. Nothing falls through the cracks because the cracks are covered.
- Convenient. Our personal favorite feature: a list of common job titles marked “E” or “NE” for exempt/nonexempt status. It’s a huge work saver.
- Up to Date. If you are using an old self-auditing program, you could be in for trouble. Substantial revisions in the FLSA went into effect in 2004. Anything written before that date is hopelessly—and expensively—obsolete. BLR’s Wage & Hour Self-Audit Guide includes all the changes.