Management Risk #1: Searching Applicants on Social Media
What’s the Risk?
The biggest risk for managers in social media searches is that you might learn information that you do not want, for example, information about race, national origin, or health or genetic information. Potential violations could be Title VII, GINA, and the ADA, to name a few.
For example, on a typical Facebook page one might see:
- An applicant displaying a birthday cake with her age of 45 in candles.
- A reference to her Scientology membership.
- Comments such as “Guess what, everyone, I’m pregnant!”
- “Here’s a link to the Walk for Breast Cancer donation page—please donate in memory of my mother.”
- Picture of an applicant in a wheelchair that also reveals the candidate’s race.
Risk Management Tips
- Delay the search until after meeting the applicant. At that point, many factors are already apparent (age, gender, race, obvious disability, etc.).
- Be consistent. Do a similar search for all applicants for the job.
- Document your search plan and findings.
- Don’t ask for access to restricted social media content; limit searches to publicly accessible sites.
- Be aware of state laws (many states have social media password laws, and legislation is pending in many others).
- Develop a policy.
- Routinely train staff on the policy.
Management Risk #2: Speech on Social Media
What’s the Risk?
Attempts to regulate employee social media conduct may violate the National Labor Relations Act. The Act permits employees to discuss terms and conditions of employment without reprisal, and the National Labor Relations Board (NLRB) has been interpreting this right broadly.
On the other hand, employee social media conduct can expose employers to liability for violation of employment laws. For example, employees may say things on social media that:
- Show evidence of discrimination.
- Could be considered harassment.
Risk Management Tips:
When disciplining or terminating an employee for posting social media content, consider these signs that the posting might be protected concerted activity under the NLRA.
- Attracts or solicits a response from coworkers.
- Contains a call to action.
- References collective bargaining activity or labor requirements.
- States concerns that management was previously made aware of.
Management Risk #3: Surveillance of Employee Social Media
What’s the Risk?
When employers monitor the employee’s social media activity, they run two risks:
- Damage to morale.
- The company may call it surveillance, but the employees will view it as snooping, and they will not like it.
- Exposure to legal liability:
- Discrimination claims. As with searches, monitoring will likely turn up information that employers may wish not to have.
- Privacy claims. These claims are primarily brought under state law.
Risk Management Tips:
- Develop and implement written policies. Consider how employees use social media and the Internet in their daily work, what types of sites they need to visit, etc.
- Inform workers about your monitoring.
- Obtain consent from workers.
- Filter or block certain Internet content.
- Stay within legal limits of what information employers can and cannot access.
Management Risk #4: Company Secrets
What’s the Risk?
- Proprietary information falling into the wrong hands., for example, a customer list, new product plans, or a secret formula.
- Loss of protection under trade secret laws. Publication of a trade secret may destroy its status as a trade secret.
Risk Management Tips:
- Define “trade secret.” Recommends using this language from the Economic Espionage Act:“Trade secret” includes: all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing.
- Enter into written agreements with employees regarding trade secrets (as defined).
- Train employees about protections against disclosure of proprietary information.
- Insist that employees turn on privacy settings for any social media accounts they use for business.
- Impose restrictions on access to proprietary information.
- Restrictions can be physical or electronic.
- Address the problem of departing employees.
- Take control of your organization’s presence in the social media space.
- Monitor your organization’s online presence, for example, with Google alerts.
