Can a business use social networking to investigate potential or current employees?
Many companies search the Internet, including social networking sites, to research potential and current employees. This information is readily available, but companies should keep a few things in mind.
Impersonating someone on a social networking site to gain information can be considered fraud, and a violation of the site’s terms of use. The scope and restrictions under relevant privacy laws should be taken into account when performing such research on current or potential employees.
Even if you discover something that may make you wary of hiring someone or make you reconsider an employment decision, state and federal laws, including those on discrimination, still apply. For example, simply because you found out on Facebook that a current or potential employee was pregnant does not make it OK to make an adverse employment decision based on that fact.
How should an employer deal with employees’ use of social networking at work?
From a purely legal perspective, subject to local laws on privacy, courts rulings on the scope of such laws within the workplace, and existing company policies, a company can impose rules about the use of social networking at work on company equipment.
However, there are also employee morale and company culture issues to consider. There should be a balance between the need to have employees focusing on work and not wasting company assets, and the realities of the place social networking has in people’s lives and the company’s culture.
Further, some companies may encourage employees to use social networking to increase business. However, they need to be aware that, depending on the situation, employees’ statements on their own social networking site can be attributed to — and used against — the company. Businesses that encourage business use of social networking should consider training employees on the appropriate use of social networking.
How can businesses protect themselves on social networking sites?
Whether or not they are using social networking as part of their marketing strategy, businesses should be aware of what is being said about them. Social networking is another area companies need to monitor.
If businesses are using social networking for business purposes, they need to be aware of what they and their employees do and say on such sites. Anything a company puts out on social networking sites is liable to be taken by another user for their own purposes. A company’s trademarks, copyrighted videos, marketing efforts and coupons are subject to being taken and misused.
Also realize that anything you say on a social networking site, even if it stops appearing on the live Web page, can be stored forever. A statement that may be perfect for the company now could come back to harm it in the future, as litigating parties have become much more sophisticated in looking for evidence on social networking sites.
Further, social networking sites have features that allow others to post comments, but not all comments are good. A business should investigate the controls it has over such comments and whether the ability for others to comment can be turned off or if comments can be deleted. However, keep in mind that such restrictions can cause a backlash if users are not allowed to post or if their posts are deleted.
Peter Berk is an attorney with McDonald Hopkins LLC. Reach him at (312) 642-4168 or [email protected].
