Social media is no longer new. It is mainstream. To avoid social media today is like avoiding e-mail 15 years ago.
For employers, social media creates risks and rewards. This article discusses how to maximize the rewards and minimize the risks.
Despite the substantial benefits to having a diverse workforce, employers need to be careful about how they increase diversity or they may back into a reverse discrimination claim.
Employers cannot set aside a position for a person of a particular equal employment opportunity group. Employers probably cannot even give an applicant a "plus" because of his or her diverse status, simply to break a tie. What an employer can do is increase the diversity of the applicant pool, and that is where social media can be helpful.
Recruiters may want to post job openings on LinkedIn. But they also may want to supplement general postings with targeted recruiting in LinkedIn Groups that are more likely to be populated by individuals who are underrepresented in the company.
Such targeted postings should be made in addition to and at the same time as the general postings. Otherwise, the targeted postings may be portrayed as a means to fill a position with a member of a particular demographic group as opposed to a way to expand the diversity of the applicant pool.
Social media can play a role in the screening process, but employers should consider when and how to do this.
The risk: In looking at candidates' social media profiles, HR professionals may learn information that candidates might later assume is the basis for an adverse action.
Just from candidates' pictures, HR professionals can learn information that they don't want to know when screening applications.
Studies show that we may be less likely to interview individuals whose names appear to be associated with racial or ethnic groups. If subconscious bias exists with names, it most likely exists with pictures, too. And that subconscious bias means HR professionals may screen out certain talent—to the candidates' and the employer's detriment.
At the same time, we are perfect only twice in our lives: at birth and when interviewed. Even behavioral questions don't always tell you how someone would behave. Sometimes, they tell you only whether a candidate knows how he or she should behave.
What candidates choose to post on their social media profiles, however, does tell you how they behave.
One employer reviewed the public Facebook page of a potential recruiter. He was wearing nothing but a thong. No businessperson should put that on his or her Facebook page.
Better to have discovered his poor judgment before he started than to have "thong man" as a recruiter. So, the value of using social media in that case was great.
But it was great only because the employer followed these recommendations:
Don't screen applicants in deciding who to interview.
Admonish managers that they should not review candidates' social media profiles.
Have an HR professional conduct the social media review.
Conduct the social media review as part of the background check of the finalist when the HR professional already knows the equal employment opportunity profile of the individual.
Social Networking at Work
Like candidates, employees use social media. The question is what contours should be placed around it.
Some employers prohibit social networking during work time or while using the company's communication systems, unless the social networking is part of an employee's job. This kind of general rule probably is lawful, as long as it is applied consistently.
Yet, does it reflect the reality that social media is everywhere? If your employer allows individuals to send or accept LinkedIn invitations at work, consider including a narrow carve-out; otherwise, those actions are inconsistent with company policy.
And, employees need to receive guidance about what to say when they use social media in terms of their relationship to the employer. There are two general rules:
When an employee is promoting the employer's products or services, the employee should make clear that he or she is employed by the company. This is true even if the social media is personal and not professional. Failure to make the affiliation with one's employer known may result in a misleading endorsement in the eyes of the Federal Trade Commission.
Employers may also get early warning signs of an employee’s intent to leave.
Conversely, when an employee posts her own personal views, she should make clear that she is speaking for herself and not her employer. Tell employees to state that they are not speaking for their employer but not to mention their employer by name. Otherwise, the disclaimer will create a result that is opposite to the one intended because it will link the post to the employer.
Connecting with Workers
Is it OK to connect with or friend colleagues on social media?
It depends. There are two issues: What is the nature of the workplace relationship, and what is the nature of the social media relationship?
If you have direct or indirect authority or influence over specific employees, I recommend against friending them. You may learn more about them via Facebook than you would going through their medicine cabinets.
But connecting professionally—for example, via LinkedIn—with subordinates and others over whom you have institutional authority has much lower risk and has the potential for rewards. The risks are lower because most individuals do not discuss problems with their medications, spouse or children on their professional profiles.
Employers need to remind employees that many policies, such as confidentiality and harassment policies, apply to social media—even personal social media. By connecting with employees via professional social media, an employer has an opportunity to spot-check if those policies are being followed, at least in professional profiles and posts.
For example, an employee may seek an endorsement from a client. But if the employer wants to treat the identity of clients as confidential, the endorsement may have just blown whatever trade secret protection may exist, at least as to the identity of that client.
Employers may also get early warning signs of an employee's intent to leave.
If an employee is updating his profile and joining certain groups, an employer may have reason and need to re-recruit its talent.
Look for trends, too. Is it coincidence that five employees on a team decide to update their profiles on the same day? It happened. They are still with their employer.
As the preceding discussion mentions, employers need to link their policies to social media activities. For example, employers should make it perfectly clear that:
Confidential information cannot be posted or tweeted.
Conduct that would violate the employer's harassment policy is not protected simply because the employee intends it to be private. If employees or business partners legitimately become aware of harassing behavior without hacking, then it has cascaded into the workplace or infected workplace relationships.
Years ago, we needed to remind Fred Flintstone that HR policies apply to e-mail; today, we need to remind him that HR policies apply to social media.
Employers need to be aware that some social media posts may be protected by various laws. For example:
The National Labor Relations Act (NLRA) protects most concerted activity. The National Labor Relations Board (NLRB) has defined concerted activity broadly to protect vituperations by employees about the terms and conditions of their employment.
Complaints about discrimination or harassment on a social media site may be protected by Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act or other equal employment opportunity laws, even if they are specific to the employee and do not arguably involve concerted activity.
Complaints on a social media site about the safety of certain products may be protected by federal or state whistle-blower laws.
It's not easy to draw a line between what is protected on social media and what is not. Therefore, managers should not draw it.
Instead, consider telling managers that they must report to HR posts or tweets that are of concern to them without taking any action so that HR can determine, often with the advice of counsel, whether the communication is protected and what actions to take.
Sometimes, an employer will need to ignore such messages. Sometimes, an employer will be required to investigate. Other times, an employer will take adverse action. It all depends on pesky facts that get in the way of drawing clear lines upfront.
The difficulty in drawing lines should be considered when drafting a social media policy, including any nondisparagement rule.
A broad nondisparagement rule may violate the NLRA as reinterpreted by the NLRB. Even carve-outs may not be enough, unless they are explicit. For example, simply saying that the nondisparagement rule does not apply to posts protected by the NLRA may not be enough. To satisfy the NLRB, employers may need to make clear that employees have the right to post disparaging comments about the terms and conditions of their employment. Ouch.
So, perhaps employers need to reconsider whether they want a rule on disparagement from the outset. There doesn't have to be a rule for everything.
Of course, there is some risk in not having upfront notice. But pristine notice is not risk-free. As with all aspects of HR, it is about managing risk, not avoiding it.
The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.
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