Tim Twigg and Rebecca Crane
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News flash: An employee’s inflammatory rant against his or her employer on Facebook can be a protected activity. No, you didn’t misread that; it’s true. A recent settlement by the National Labor Relations Board (NLRB) has employers all over the country scrambling to understand what this may mean to them.
At issue is: Can you discipline and/or fire an employee for badmouthing you or a coworker on Facebook or any other social networking website? What if he or she complains about working conditions or salaries? What if he or she posts lewd or racial comments or confidential information? Where is the line between an employee’s social networking freedom and your rights to protect your practice?
This is not only about disciplining and/or firing an employee for his or her posts; it is also about controlling social media use in the workplace, the risks involved with “friending” each other, proper use of practice computers, and disclosure of confidential information. Additionally, what about using social media to learn about someone you are thinking of hiring?
How you feel about social media
How you feel about social media may shape your acceptance, or tolerance, of it in the workplace. Some people like social media, whether it’s Twitter, Facebook, LinkedIn, or some other site. Those who do embrace it, use it, and reap benefits from it; for others, it’s a different story.
Regardless of which side you are on, there are some basic principles that should guide your actions within the workplace.
According to a 2010 survey by Jobvite, roughly 73% of surveyed employers use social media websites to research a job candidate’s background and screen out undesirable candidates.
In another study by CareerBuilder.com, roughly 35% of those in the survey who use social media for recruiting found content that resulted in the candidate not being hired. Here are the leading reasons:
- Provocative or inappropriate photographs
- Content about drinking or drug use
- Bad-mouthing previous employers, coworkers, or customers
- Discriminatory comments
- Inappropriate disclosure of company information
It is clear that social media sites are being used to enhance recruiting efforts and employers are finding material that results, by their estimation, in avoiding a bad hire. It makes perfect sense — but beware!
Invasion of privacy
One of the most common claims with using social media content is invasion of privacy. A claim for invasion of privacy can happen if a person has a “reasonable expectation of privacy in the information viewed.” Therefore, the means with which the employer gains access to the information is fundamental to whether or not this will become a problem.
If the information is all public, then probably no expectation of privacy can be argued. If the employer gains access to information that is meant for “private” parties through covert means, then liability may land squarely on the employer’s shoulders. The takeaway here is to only consider information freely obtained through public methods and to not engage in anything sneaky or manipulative.
Another concern is discrimination. A plethora of laws, both on state and federal levels, exist to protect people from being judged solely on certain characteristics. These “protected classes” are protected from being adversely affected as a result of their race, religion, disability, sexual orientation, marital status, national origin, etc., to name a few. Simply put, these rules mandate that employers judge a person based on job-related characteristics only.
With few exceptions, many of these protected characteristics are not known through standard recruiting processes. In fact, employers are expressly prohibited from asking questions or obtaining information about these protections before hiring someone. Liability exists when the applicant isn’t hired and falls into a protected category. He or she may draw a conclusion that it is because of the protected characteristic and can choose to file a claim for illegal discrimination.
Social media opens the floodgates for employers to know more about an applicant. Pictures, videos, profile data about the person’s age, race, sexual orientation, etc., as well as comments written by the individual can tell the employer about characteristics protected under the law and put the employer in a vulnerable position.
There’s no going back once you view someone’s information through social media. Be sure you can support your decision of refusing to hire someone as legitimate, nondiscriminatory, and firmly grounded in job-relatedness in the event you are asked to defend your decision.
My boss is my ‘friend’
Sites such as Facebook and MySpace have the ability to allow information to be public (i.e., viewable by anyone) or private (i.e., viewable only by “friends”). People who choose private settings must accept or deny a “friend” after a request has been sent. If this request is accepted, the “friends” are connected and all material or content is viewable by each other.
In many cases, bosses and employees both actively participate in one of these social network websites and may decide to “friend” each other. As you can imagine, this can blur the line between boss and employee. For many of the reasons already mentioned, this should be avoided.
Employers who “friend” their employees risk so much if and when the relationship goes south. Armed with the knowledge that the employer knows nearly everything about that employee, including things that are protected under the law, the former “friend” could draw some whopping conclusions about the relationship, most of which are not good.
Recently, we helped a client work through a situation where an employee got into a snit about her “friend” relationship with her boss during off hours, and suddenly claimed that the content of their communication on Facebook was sexual harassment. This is just one of the many possibilities that can occur when bosses and employees blur the lines by “friending” each other.
‘Protected concerted activity’
The National Labor Relations Act (NLRA) contains a provision that applies to both union and non-union employers. It’s called “protected concerted activity,” and it protects employees’ rights to engage in conversations or discussions about their pay, benefits, working conditions, or other conditions of employment with other coworkers.
Recent rulings by the National Labor Relations Board have indicated that it doesn’t matter if those discussions happen in person (such as at the water cooler in the break room) or online (such as on Facebook); they’re still protected.
Disciplinary action or termination of employees who engage in these kinds of conversations, regardless of the medium, is fraught with risk and should only be done with the guidance of an employment compliance specialist. Policies that prohibit these types of discussions should be removed or modified immediately.
Even if you don’t use social media for recruiting and you don’t “friend” your staff, there is still the challenge of staff using your computers and your work time to participate in their own networks, and they may even be divulging your practice’s information when doing so. What can you do?
It begins with a well-written, comprehensive policy in a policy manual and other handbooks (call us for a sample social networking policy). This policy should not be overly broad because it may be difficult for employees to follow and conflict with protections under the law. At a minimum, the policy should:
- Address confidentiality of practice information (patient names, employee information, etc.).
- Spell out prohibitions against using the practice’s name, images, proprietary information, trade secrets, etc.
- Prohibit any form of harassment or discrimination.
- Control use of practice equipment or employee’s work time for social networking.
- Allow the employer to monitor an employee’s use of the Internet and social media on practice computers at any time.
Educate your staff on your social media policy, give them a copy or allow them to review it, and then apply it consistently with all staff members. Incorporate this policy into your orientation program and plan on reviewing the policy regularly (for example, annually) to ensure ongoing awareness and knowledge.
Don’t take things personally
Finally, don’t take things personally. All too often employers make snap decisions about situations in the heat of the moment when they are upset. If you find or hear about a post that an employee has made that upsets you, take a step back, take a deep breath, and really evaluate the source of your frustration.
Employees have talked and will probably continue to talk and complain about their employers, whether online or in person, and most of it amounts to nothing more than idle gossip and is not worth a response. All situations will be different, of course, but you’ll make your best decisions with a logical evaluation rather than an emotional reaction.
Tim Twigg is the president of Bent Ericksen & Associates, and Rebecca Crane is a human resource compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit the Web site at www.bentericksen.com.