We often hear that our supervisors are our eyes and ears in helping to ensure legal compliance and minimize risk. This is true when it comes to social media, but only if supervisors receive training on what to do and what not to do. The do’s and don’ts of social media are not always intuitive. Here are ten of the more common mistakes that supervisors make in the absence of adequate training:
- Posting a job opportunity without including the appropriate EEO and/or AA tag line. A posting is an advertisement for legal purposes.
- Failing to retain a posting about job openings in accordance with the employer’s document retention guidelines (which often go beyond the legal minimum). Expect this to be a hot litigation issue where the posting is not retained.
- Screening social media sites in deciding whom to interview. When this occurs, the supervisor will acquire EEO-related information that he or she may unconsciously and improperly consider, or at least be perceived as considering. If screening is to be done, it should be done on a consistent basis late in the process by HR. For more information on how to minimize the legal risks of screening by HR and still obtain the potential business benefits, see the Legal Trends column in the September edition of HRMagazine.
- Friending a subordinate or someone over whom the supervisor has direct or indirect supervisory or institutional authority. The supervisor may learn more about the personal life of a “friend” than if she were to look into their medicine cabinet. [That is not a recommended alternative].
- Endorsing a former employee who was let go for problems with performance, attendance or conduct. The endorsement later may be argued to be evidence of pre-text if a discrimination claim is filing. That is, the endorsement is inconsistent with the true reason for the termination. Pretext alone wins cases!
- Linking In only or primarily with those who are "like” the supervisor. Social media is form of social inclusion and social inclusion is form of business inclusion. Linking In only or primarily with subordinates who share a supervisor’s EEO profile may be evidence of bias in addition to sending a message of exclusion even if no claim is filed. On this issue, you may want to check your own connections, too!
- Encouraging employees to promote the company's products or services without making sure they are properly paid. A protocol needs to be developed to limit when non-exempt employees can engage in promotional activities, and a vehicle to ensure they are properly paid. Note: when engaging in promotional posting -- that is, endorsing (broadly defined) the company’s products or services -- the employee must state he or she is employed by (or otherwise affiliated with) the company. Otherwise, prepare to do the FTC tango.
- Engaging in personal social media without making clear it is not on behalf of the employer. Some supervisors actually list the employer from which they are distancing themselves. Ouch! Through SEO you get the opposite result of what you intend. Google the employer and that blog pops up!
- Failing to report to H.R. allegations or evidence of wrong doing referenced on social media by employees of the company. To see and ignore is to condone. For example, supervisors should report to HR complaints by employees of gender bias as well as postings of racist rants by an employee.
- Disciplining/terminating employees for disparaging postings which are protected as concerted activity under the NLRA. When discovering a disparaging posting, supervisors should neither take corrective action nor ignore. Instead, they should report the posting to HR so that HR, often with counsel, can determine if the posting is protected by the NLRA (or some other law). For more guidance on whether a posting is protected, take two aspirin and read Five Categories of Content for Supervisory Personnel.
Unless your supervisors have the ability to intuit all of the above issues (and more), they need training on the legal and practical issues associated with social media and employment. If you happen to have a supervisor who can intuit their way through the social media maze without training, please ask them to give me a call. I want to identify, recreate and patent their intuit gene.
This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.
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