September 16, 2009

Since the world wide web became public, the internet has been changing the way that companies communicate and conduct business. Social networking sites, online communities that enable people to communicate and build networks based on similar interests, activities, values, and ideas, have significantly contributed to that change. These sites can provide a number of advantages to employers, such as publicity and marketing, recruitment, and employment screening. Improper or careless use of such sites, however, may result in tort liability, can compromise confidential information and business reputation, and may lead to discrimination, privacy, and freedom of speech suits.  While the use of these sites can present increased litigation threats to businesses and employers, the reality is that not only are they here to stay, but also that they are growing at an exponential rate. Employers can either harness the power of these sites and use them to their advantage, or be left behind while their competitors do so.

The following article describes the major social networking sites in today’s market, and the advantages and disadvantages of using such sites. It concludes with recommendations on how employers and businesses should treat these sites to reap maximum benefits in the current market.

The Major Players

There are hundreds of social networking sites, and that number is growing by the day, but four major players stand out: LinkedIn, Facebook, MySpace, and Twitter. Employers should understand the intricacies of each site in order to effectively use them to their advantage and avoid their pitfalls.

LinkedIn. Unlike the other major free social networking sites, LinkedIn is primarily designed and used for professional networking and business-oriented endeavors. The site was launched in 2003, and enables users to join networking groups and add other users as “connections,” i.e., people they know or trust in a business setting. Members may utilize their connections and groups to network with other business professionals and find jobs and business opportunities. In addition, employers may use the site to list job opportunities and search for potential employees. Currently, all Fortune 500 companies have executives who are LinkedIn members, and over three-hundred law firms have a presence on the site.

Facebook. Facebook is a free, international social networking portal launched in 2004.  With approximately 200 million users and over one billion visits per month, it hosts more users than any other major social networking website. Although originally targeted at college students, Facebook now allows anyone with a valid email address to sign up and access the site. Facebook features personalized profiles, current status updates, email, video and image sharing, group pages, instant messaging, and notes, which are similar to blogs.

MySpace. Launched in 2003, MySpace is another free social networking website with international use and popularity. The site primarily attracts 18-24 year olds, but users of all ages frequent the site. Although marketed as a “Place for Friends,” the site also features profiles of musical artists, companies, businesses, and other groups in addition to personal profiles. Users can write blogs, post photos, videos, and music, message other users, and join groups.

Twitter. Launched in 2006, Twitter is one of the more recent social networking sites and is rapidly gaining popularity among users of all ages. Twitter is a free micro-blogging site that enables users to post “tweets,” which are short messages with a maximum of 140 characters. Tweets provide succinct updates or web-related links and approximately three-million tweets are sent per day.  Users have the option of making tweets public or only viewable to friends.

The Advantages of Social Networking Sites

Publicity and Marketing. Giving the Business a Face: By simply creating a profile on any of the multitude of social networking pages, a business creates a professional identity viewable around the world. Businesses may craft their profiles to show the personality, or “face,” of the business, thereby attracting and creating a more intimate relationship with users, consumers, other businesses, current clients, prospective clients, employees, and potential employees. Businesses may also post news updates in real time in order to keep viewers informed and up-to-date. Moreover, businesses may advertise links to their professional websites on their network profiles in order to increase and direct traffic to their websites. To achieve the best results, employers should be sure to update their profiles frequently, cover exciting topics, and target specific audiences.

Recruitment. Millions of employment-aged users from around the world frequent social networking sites, making them an excellent platform for recruiting potential employees. Employers can use blogs, discussion forums, profiles, and “tweets” to post recruiting information, solicit job applications, and reach qualified job seekers around the world. Additionally, the sites allow potential applicants to engage in discourse with the employer and evaluate the business to determine whether the applicant would be a good fit.

Screening Potential Applicants. Using social networking sites to research and screen potential employees can be a quick and costeffective way to make sure an employer is making a wise hiring decision. For example, perusing posted items such as videos, pictures, and blogs provides insight into an applicant’s analytical abilities, writing skills, communication skills, judgment, maturity, and reputation. An employer can use this information to compare candidates and determine which candidates fit best with the business and possess the necessary skill sets.

The Pitfalls of Social Networking Sites

Possible Liability for Torts Committed by Employees. Businesses and employers face possible vicarious liability for torts committed by employees via social networking sites, including, but not limited to, defamation or harassment of customers, employees, or competitors.  If an employer knows or has reason to know that an employee is engaging in such offenses, it may be deemed vicariously liable if it does not take action.

Risks to Confidential Information and Business Reputation. While businesses may use social networking sites to paint themselves in the most positive light, the exact opposite may also occur. Businesses risk employees or web-users intentionally or unintentionally revealing confidential information or broadcasting negative remarks to the entire worldwide web.

Discrimination Claims. Discrimination against employees or applicants based on a protected characteristic, such as gender, sexual orientation, age, race, or disability, is prohibited. This type of information, however, may be readily available on an individual’s social networking site profile, and an employer may discover this information while researching applicants or employees. If the employer ultimately rejects the applicant or terminates the employee, the risk of a discrimination claim increases if that person can show that the employer unlawfully used the sites to obtain this information and the individual suffered an adverse employment action as a result.

Claims of Violations of Privacy, Freedom of Speech, and National Labor Relations Act. Employees and applicants may challenge an employer’s search of a social networking site as an invasion of privacy and an illegal search under the Fourth Amendment.
If the claimant shows that the employer or business used questionable tactics to gain access to a site that the employee or applicant attempted to keep private, the severity of a claim is enhanced. See Pietrylo v. Hillstone Rest. Group, No. 06-5754(FSH), 2008 U.S. Dist. LEXIS 108834 (D.N.J. July 25, 2008) (denying defendant’s motion for summary judgment on an invasion of privacy claim where the employer defendant accessed an invitation-only internet discussion page). 

Applicants or employees may also defend their social networking information through a First Amendment freedom of speech claim or National Labor Relations Act claim. See Spanierman v. Hughs, 576 F. Supp. 2d 292 (D. Conn. 2008) (teacher claimed violations of the Fourteenth Amendment procedural due process, substantive due process, and equal protection rights, and First Amendment freedom of speech and freedom of association rights after his employer viewed his MySpace profile and did not renew his employment contract).

Recommendations

Clearly Define Your Business’s Policies on Social Networking Sites in the Workplace. Employers should first decide whether or not they support the use of social networking sites in the work setting.  Employers should be aware that banning the use of such sites may result in adverse publicity for the business and may discourage and upset employees. Additionally, employers may miss out on invaluable marketing opportunities. Therefore, supporting the use of these sites within the bounds of clearly identified policies is appropriate. If an employer supports the use of social networking, the employer should create clear policies regulating the use of such sites, similar to current email and blogging policies, and ensure that employees understand and agree to these policies in writing. While specific policy adoption is ultimately left to the discretion of the employer, the following provisions are recommended:

• When posting on social networking sites, employees should not speak on behalf of the company unless authorized to do so by a designated person or department. If an employee mentions the company in any capacity on a site and does not have authorization to speak on behalf of the company, the employee should state that his views are personal and not a representation of the company.
  
• Employees should refrain from posting any comments or materials that could be construed as harassing, discriminatory, or defamatory. Harassment includes, but is not limited to, comments or materials that are threatening, demeaning, sexually inappropriate, or aimed at a member of a protected class.
  
• Employees may not comment on or disclose confidential company or business information or make disparaging remarks about the company.

When drafting policies, employers should be aware that there are limitations on how they may restrict an employee’s use of a social networking site. We recommend a comprehensive review of state law in all states where employees are located to ensure compliance.  In addition, we recommend a legal review of the National Labor Relations Act and constitutionally protected free speech, which allow employees to discuss the terms and conditions of their employment with some restrictions.

Construct Clear Policies on the Screening Process. When screening applicants and researching employees, employers should create strict policies concerning which company representatives may research individuals, what they may research, and what methods of research they may use. In order to guard against discrimination suits, employers should designate a neutral party who is not an employment decision-maker to research the applicant or employee’s social networking profiles. Employers should instruct that neutral party to withhold any and all information pertaining to an individual’s protected class or characteristics when reporting back to the decision-maker. Further, the neutral party should not unnecessarily delve into research that would focus on any of these protected traits. Thus, if the employee or applicant files a charge or lawsuit, the company can state that it used social networking sites as permissible research and recruiting tools, and the decisionmaker possessed no knowledge of any protected traits as a result of the research.

Employers can also take steps to guard against privacy infringement suits. Many social networking profiles enable users to set privacy settings and limit who may view their information. While these settings do not necessarily ensure that the profile is actually private, users may have the expectation that their information is private. When researching employees or applicants on social networking sites, individuals conducting research should not employ questionable tactics to gain access to profiles and other information.  Employers should not try to “friend” an applicant or employee for the primary purpose of investigation. Employers should also not attempt to obtain passwords or access to the profile from other employees, as the other employees may feel compelled or obligated to provide the employer such information.

LeClairRyan’s Labor & Employment group is available to prepare or conduct a review of your company’s social networking policy to ensure compliance with all applicable laws. That way, your company can begin to immediately harness one of the most powerful and effective business tools in the current business market.

The author, Elizabeth Ebanks,
can be reached at 804.783.7509
or at [email protected].

Summer associate Naohm Stewart assisted
with this article.