Business can make sure workplace social media is a tool, not a weapon

By Melissa G. Cassell

In an era when nearly three-quarters of adults use social media sites, workplace social media issues are impossible to avoid. It’s an area of law evolving as quickly as a Tweet can go viral, but one thing is clear: there is no point in employers trying to avoid or ban Facebook, Instagram, Twitter or any other social media in the workplace. It could drive away job applicants or lead to a lawsuit.

Employers should instead learn to use social media as a tool, while at the same time avoid the pitfalls that can make social media a deadly weapon.

The tool: Social media in the workplace can help businesses make better hiring decisions by easily providing research on potential candidates. A Facebook page or Instagram feed can provide valuable insights, good and bad, though the usefulness is diminishing as savvy job-seekers learn to keep potentially embarrassing posts private. LinkedIn, which bills itself as the world’s largest professional network, is another good place to check.

The weapon: Employers must be careful about using social media information as reasons for not hiring applicants. The Federal Trade Commission has made it clear that any background reports on candidates must comply with Fair Credit Reporting Act standards requring reasonable steps to make sure the reports are as accurate as possible. Violations could lead to damage claims and further liability.

Employers must also make sure that social media information is not used to discriminate against job applicants. Keep in mind that Title VII of the Civil Rights Act prohibits discrimination based on religion, disability, sex or national origin, applies even in the online world.

Finally, make sure you’re researching the correct applicant. Searching my name on LinkedIn, for example, turns up 21 profiles. Be careful about picking the right one.

Beware free speech issues with workplace social media

The tool: Social media is a great way to create community buzz about your business. Asking employees to join the campaign can magnify its impact and broaden your audience.

The weapon: Requiring employees to let you access their social media accounts can be construed as chilling concerted activities and collective bargaining under the National Labor Relations Act. It could even become a separate illegal offense if the Social Networking Online Protection Act passes Congress.

Similarly, be careful how you react to employees’ interactions on social media. Recent cases have found that “liking” something on Facebook is protected speech, and therefore, disciplining employees over “likes” or comments could be construed as violating their First Amendment rights.

The tool: Public posts, pictures and videos can provide weighty evidence when defending worker’s compensation claims. Images posted by an employee on Instagram chronicling a weekend of water skiing could be powerful evidence that a work-related injury isn’t debilitating.

The weapon: For reasons mentioned above, businesses are better off leaving this task to their insurance companies. Just make sure they do it!

Melissa G. Cassell is an attorney with Morton & Gettys LLC in Rock Hill, South Carolina. Her practice includes employment, health care and business and corporate law. You can reach her at 803.366.3388 or at Melissa.cassell@mortongettys.com.

Information or interaction on this page should not be construed as establishing a client-attorney relationship or as legal advice. For advice about your specific situation, please consult one of our attorneys.

Melissa Cassell

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