The use of social-media sites—Facebook, YouTube, Twitter—hassurged at a record-breaking pace over the past few years, and theyare now used by employees and employers in almost every workplace—adevelopment that has opened new vehicles for harassment,discrimination and employment-related defamation.

While most activity is productive, employees may intentionallyor inadvertently use social media—whether on the job or at home—ina way that poses risks for their employers.

Likewise, an employer's use ofsocial media in the hiring and screening process can createsignificant risk for an organization if it is alleged that theemployer relied upon prohibited information in the selectionprocess.

Social media has changed how we communicate as a society.Moreover, technology such as e-mail and text messaging and siteslike Facebook, Myspace and Twitter have opened new vehicles forharassment, discrimination and employment-related defamation.

Facebook alone has more than 500 million active users. IfFacebook was a country, it would be the world's third-largestcountry by population. Statistics show that the fastest growing demographic ofsocial-media users are not teens, but individuals of mid-career age. With thisnovel and increased use of social media in the workplace, linesbetween professional colleagues and social “friends” can becomeblurred. This creates unchartered territory for many employers,with little to guide them on this journey.

Employees often create these types of problems not because theyare acting maliciously, but because they are acting—orposting—without thinking. Much of what individuals share online isuncensored and therefore can be subject to misinterpretation.

Discipline Decisions

There are multiple scenarios that may prompt an employer todiscipline an employee for his or her social-media use. The mostobvious situation is when an employee engages in illegal web-basedactivity while at work.

Another common scenario is where an employee spends asignificant amount of on-duty time using applications likeFacebook.

Other situations may include employees who violate companypolicies with their use of social media by posting suggestive ordistasteful photos or videos or even calling in sick and thenposting photos on a social-media site showing them in perfecthealth on that day.

Before deciding to take an adverse employment action against anemployee based on his or her social-media use, employers shouldconsider the legal constraints on doing so, including:

• The National Labor Relations Act, which affords employees(even those who are not unionized) the right to engage in“concerted activity.”

This includes the right to discuss the terms and conditions oftheir employment (and even to criticize their employers) withco-workers and outsiders. According to the NLRA, a concertedactivity is action engaged with or on the authority of otheremployees and not solely by and on behalf of the employeealone.

• Was the employee engaging in “legal off-duty activity?”

Certain states have what are called “lifestyle statutes,” whichare laws that protect an employee or applicant's legal off-dutyactivities, including an employee's political activities.

• Does the employee have a potentialdiscrimination claim?

Employers are prohibited from unlawfully discriminating againstemployees on account of protected characteristics, including race,age, sexual orientation, marital status, disability and evengenetic information. An employee terminated for inappropriatesocial-media use may later assert the employer's actions werediscriminatory.

Whether employees are communicating with friends outside theworkplace or with co-workers and business partners regardingwork-related projects, employers should have clear policiesregarding the use of social media. Employees should be informed ofpotential risks and made aware of the employer's expectations.

While such a policy will not necessarily insulate an employerfrom all potential liability, it will reduce employees'expectations of privacy and provide the employer with morediscretion to take action against employees who engage inelectronic misconduct.

In drafting such a policy, employers may want to consider thefollowing:

• Company equipment is designed primarily for business use.
• Employees must comply with company policies with respect totheir electronic communications, such as policies prohibitingharassment and standards of conduct.
• If allowed at work, time spent on social networking should notinterfere with job duties.
• Remind employees to comport themselves professionally both onand off duty.
• Do not prohibit employees from discussing the terms andconditions of employment.
• Employees must abide by non-disclosure agreements orconfidentiality policies.
• Employees must clearly communicate that the views in theirblogs are their own and not those of the employer.
• The company reserves the right to take disciplinary actionagainst an employee if the employee's electronic communicationsviolate company policy.

Risks Employers Run When Using Social Media

Employers can face liability in connection with social-mediaactivity based upon their own actions as well. Personal andprotected information such as race, religion, marital status, etc.is readily available and prevalent in social-media and otherInternet sites, and it can be tempting for those making hiringdecisions to access that information.

Again, it is important to keep in mind that much of whatindividuals share on social-media sites is uncensored and may beinaccurate. If an employer does access protected information via asocial-networking site during the candidate-screening process, anallegation of discrimination might be alleged even if the companydid not actually rely on the information in making its hiringdecision. A company can easily find itself in a defensive positionif it does not have guidelines in place regarding access to socialmedia as part of this process.

While the mere existence of a social- media policy and hiringguidelines may not eliminate the risks and challenges posed byemployees' unauthorized communications, or an employer's hiringpractices, a policy that is well-drafted and reviewed by counselfor legal sufficiency should provide employers with more optionsfor taking appropriate corrective and preventative action.

The views and opinions expressed herein are those of theauthor and do not necessarily reflect those of Chartis Inc. or anyof its member companies.

For more on employment risks associated with social media, seerelated article, “Social-MediaRisks: Facebook Dating, Book Burning & EmployeeBathing.”