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Social Networking Websites and the Workplace

Delaware Law Weekly
July 14, 2010, Michael B. Rush

The use of social networking sites such as Facebook, MySpace, and Twitter continues to increase, with recent statistics showing that Facebook has over 100 million users in the United States alone, and an estimated 350 million users worldwide.  Given the growth of social networking and media outlets, it should come as no surprise that employers are increasingly using information gathered on these sites to assist them in making employment decisions.  Recent studies show that more than 44 percent of employers report using social networking sites to examine the profiles of job candidates, while nearly 40 percent have used these sites to examine the profiles of current employees.  Approximately 35 percent have decided not to hire a candidate because of content found on a candidate’s profile.  Reasons for not hiring include profiles containing indecent photos, stories about drug or alcohol use, or posts bashing former employers.

Although social networking sites can be a valuable tool for employers, it is important that employers understand the legal implications of relying on information contained on such sites.  In particular, employers need to be familiar with statutes that are implicated when an employer utilizes information found on a social networking site to make employment decisions and recognize the need to create social media policies  for the workplace.

Using Social Networking Sites to Make Employment Decisions

In and of itself, an employer’s review of information contained on social networking sites about prospective or current employees likely will not subject the employer to legal liability. Depending on the manner in which the information was obtained, however,  the subject matter of the information, and the manner in which the information is utilized, employer issues could arise under a number of state and federal statutes.  The following list, while not intended to be all-encompassing, identifies the most relevant statutes and potential claims that an employer may face.   Other state specific statutes or regulations may apply, depending on where the employee is located.

Anti-Discrimination Statutes.  While looking at a social networking site, an employer may discover information about a job applicant that it might not otherwise have learned until a personal interview, if even then.  Information about an individual’s race, religion, marital status, sexual orientation, or disability likely will not be disclosed on a job application, and much of that information may not even be revealed during an interview.  On an individual’s Facebook page, however, such information may be readily apparent.  Although discovery of such potentially sensitive information is not unlawful, an individual’s status in one or more of these categories cannot be used as a basis for employment decisions.  By exposing hiring staff to personal information about job applicants discovered online, an employer may find that it has to more fully explain the legitimate basis(es) for its hiring decision, and establish that no inappropriate considerations influenced the hiring decision.  Of course, the first line of defense to any claim of discriminatory hiring is a strong equal employment opportunity policy—which every employer should have, distribute to its staff, and regularly update.

Genetic Information Non-Discrimination Act (“GINA”). GINA was enacted by Congress in 2008 and prevents employers from discriminating against employees (or prospective employees) on the basis of their genetic information.  GINA also specifically prohibits an employer’s acquisition of genetic information, except in limited circumstances.  It is not yet clear whether genetic information gleaned from an individual’s Facebook page (for example, that a prospective employee’s mother and grandmother both died of breast cancer) amounts to “acquisition” of protected information.  The Equal Employment Opportunity Commission, the agency charged with enforcing GINA,  has requested public comment on whether social networking sites should be considered “commercially and publically available information,” in which case the prohibition of acquiring genetic information would not apply to their use.  However, as of the date of this article, the final regulations have not been issued.  If the final regulations do not provide an exception for information contained on social networking sites, employers should strongly reconsider the use of such sites, because the benefits may be outweighed by the risk of inadvertently acquiring prohibited genetic information.

Fair Credit Reporting Act (“FCRA”).  Employers who utilize third- party companies to conduct background checks on applicants need to comply with the FCRA.  The FCRA requires that an employer give an applicant notice and obtain his/her written authorization for a consumer report to be acquired.  If an employer uses information contained in a consumer report to make an adverse employment decision, the employer must provide the individual further disclosures and notice of their rights under FCRA, as well as information about the agency that conducted the background check. 

Unauthorized Access of Websites. The prime rule for employers searching social networking sites for information about prospective or current employees is to be honest.  Employers should not use false information or aliases to attempt to access social networking sites to collect information about applicants or current employees.  This warning applies not only to more egregious acts of hacking into an individual’s online account, but also applies to pretending to be someone else to gain access.  Several federal statutes, such as the Federal Computer Fraud and Abuse Act and the Stored Communications Act, prohibit accessing a computer or network without authorization and create criminal and civil liability for violations.  A recent Ninth Circuit Court of Appeals decision, Konop v. Hawaiian Airlines, found an employer was subject to liability for accessing an employee’s private blog using the legitimate password of a co-worker of that employee.  There are a number of common law causes of action that can also be implicated when an employer pretends to be someone they are not to gain access to an applicant or employee’s private social networking site.


Social Media Policies


Regardless of whether employers are using social networking sites during their hiring process or in making employment decisions, it is important for all employers to create social media policies governing acceptable use of the internet during, and perhaps after, work hours.  Regulating employees’ use of social media in the workplace is important not only because of the obvious affect it has on productivity but also to protect an employer’s confidential or trade secret information, as well as its computer network security.

If employers intend to monitor employees’ internet usage at work, Delaware law requires that notice be given to employees of this monitoring.  19 Del. C. § 705 requires that an employer: 1) provide an electronic notice of any monitoring policies to the employee at least once during each day the employee accesses the employer provided e-mail or internet access; or 2) give a onetime written or electronic notice to the employee of such monitoring policies, which is acknowledged by the employer in writing or electronically. 

With the proper notice in place, employers should create policies for acceptable internet usage at the workplace or using work-provided equipment. The policy should include:

  • Provisions stating that employees should only post work-related information on websites or blogs IF it is done for the purpose of the employee accomplishing his/her responsibilities;
  • Provisions stating that employees must not divulge confidential employer information or act in a manner that would constitute a conflict of interest;
  • Provisions directing employees to clearly and conspicuously disclose their relationship with the employer, while further stating that they are not authorized to make statements on behalf of the employer;
  • Employers should emphasize that electronic communications are no different from paper correspondence on the company’s letterhead and should be treated with the same level of professionalism; and
  • Employers should clearly state that the policy will be evenly enforced and describe what actions will be taken against employees who violate the policy.

Some employers recognize that there can be a benefit to having employees provide free advertising for their products or services on social networking sites.  If employees are permitted to blog or post on the internet about their employer’s products or services, employers should implement a process to review these statements before they are published.  Finally, employees should be reminded that their use of social media will be appropriately monitored by the employer.

Disciplining Employees for Violation of Social Media Policies

 When an employer needs to take disciplinary action for violations of its social networking policies, it should be mindful of the statutes discussed in the first section of this article.  Additionally, other statutes may come into play depending on the type of employee involved.  For instance, First Amendment protections might be implicated if the employer is a government entity, or, in the case of unionized employees, the National Labor Relations Act or Delaware’s Public Employment Relations Act may limit an employer’s ability to discipline an employee who was acting collectively.

Conclusion

While specific social networking sites may lose or gain popularity, employers cannot afford to ignore the prevalence of social media generally.  Recognizing and capitalizing on the benefits of social media while appropriately monitoring the risks is a balancing act that employers must perform.

Reprinted with permission from 7/14/2010 issue of the Delaware Law Weekly© 2010 ALM Media Properties LLC. Further duplication without permission is prohibited. All rights reserved.