According to a Pew Research Center study, the percentage of adults online who say they participate in social networking has increased significantly from 8% in 2005 to 72% in 2013. Adults (aged 18 and older) in all age groups contributed to the increase. Moreover, Pew reports that “those ages 65 and older have roughly tripled their presence on social networking sites in the last four years — from 13% in the spring of 2009 to 43% now.”
This rapid transformation in our society, fueled by technology, is a clear indication that an increasing proportion of the workforce likely is regularly engaged in social media activity for both personal and business purposes. Many employers’ existing workplace policies and procedures have not kept up with this technological and societal trend. Regulating employee social networking activity can be a legal minefield, but the increasing presence of employees in these media compels employers to address the workplace issue now.
Here are some common questions employers have about workplace social networking policies – and answers:
- Should our discrimination policies cover on-line activity? — Yes.
- We want our employees to promote our products and services online. Are there any legal restrictions we need to consider? — Yes, there are a number. For example, the Federal Trade Commission (FTC) has promulgated guidelines addressing appropriate online endorsements (available at http://www.ftc.gov/). In addition, companies in the finance industry may have Financial Industry Regulatory Authority, Inc. (FINRA) and Securities and Exchange Commission obligations.
- We do not want employees posting all over Facebook, LinkedIn and Twitter disparaging comments about the company. Can we prohibit that? — No. Regardless of whether your workplace is unionized or not, doing so could put you in hot water with the National Labor Relations Board.
- Some of our managers like to review applicants’ public social media profiles. Are there any risks? — There can be. For example, if the applicant’s profile includes information about the manifestation of disease in his or her family members (including the applicant’s spouse), digging deeper could expose the company to a discrimination claim under the Genetic Information Nondiscrimination Act (GINA).
- It seems a good idea to screen more applicants’ social media accounts before making offers of employment, so we have included a place on our job application for the individuals to put usernames and passwords to all their social networking accounts. Is this a good risk avoidance strategy? — Probably not. Many states have passed or are considering laws that prohibit employers from asking employees or applicants for this information. (See our article, New Nevada Law Restricts Employer’s Access to Personal Social Media Accounts of Employees, Job Applicants.)
- Can we at least prohibit employees engaged in social networking from disclosing all of the company’s confidential information? — Any prohibition should not be stated broadly, but should be drafted narrowly to include only information that would not infringe on an employee’s right to engage in “protected concerted activity” under the National Labor Relations Act (which, very generally, is an employee’s right to commiserate with other workers about working conditions).