Using social media in the workplace without causing legal headaches can be complex. But the simple fact that social media is entwined in our lives makes it hard to escape. There are many benefits to be had, but also many risks. How can employers strike a balance?
"Social media – like LinkedIn, Facebook, and all the other electronic sites that allow communication among various individuals – seemingly overnight it’s everywhere. It’s touching virtually every part of our lives." Patricia Trainor noted in a recent BLR webinar. "The pervasiveness of social media means it’s a major issue for employers and HR professionals. From productivity to privacy, HR managers have to deal with it."
These issues are just the tip of the iceberg. In the BLR webinar titled "Managing the Social Media Octopus: The Eight Tentacles Every HR Manager Must Master," Patricia Trainor and Steve Bruce lent their expertise on the matter and answered participant questions regarding employees using social media to harass one another and what employers can do about it.
Q. We have a situation where one employee is harassing another on social media, but both parties are off-the-clock and not using company equipment. Is there anything an employer can do?
A. That’s a really good question. When employees are off-the-clock and harassment takes place on social media, what the courts have told us is that the employer does not have a duty to go out of its way and monitor the off-duty social media activities of its employees. However, if that conduct comes to the attention of the employer, and the harassment is affecting the workplace, then the employer has a duty to investigate. If this is the case, then it does not matter that the conduct takes place outside of the work site. The employer can step in.
Q. We have a situation involving employees commenting about other employees via Facebook. Because of "friend" relationships on Facebook, this information has gotten to managers within the company and has been brought to HR’ attention. Is there any problem with the fact that this information came to our attention through social media rather than directly?
A. I don’t think there’s a problem with that because that’s the risk everyone takes when they post on Facebook. In fact, it happens a lot that someone uses a post on a social media site to initiate a comment to HR, even if there are no managers or other people that could see the post directly. From an employer standpoint, when employees are going on Facebook and making negative comments about other employees (even if not particularly egregious), then it is indeed appropriate to take that up with the employees and explain that it could affect the workplace.
Q. Are there any special guidelines when the person posting negative comments is an employee of a temporary agency (assigned to our worksite, but not managed by our staff)?
A. Although the employee comes from another agency, once the employee is working within your worksite, that employee needs to adhere to your company rules and presumably has been informed of your company rules. In that case, yes, the employer can possibly take steps. However, there is a caveat: if the employee (temporary or not) comments on social media or elsewhere and the comment is related to any type of protected, concerted activity, that might implicate the National Labor Relations Act, the employer should be cautious.
In some instances, even temporary employees might be covered by the NLRA. In short, the fact that it’s a temporary employee from an agency will not restrict the employer from making sure that employee adheres to the rules of conduct, but make sure that you’re not prohibiting protected concerted activity.
Q. What, if anything, can the employer do if social media attacks against employees come from the company’s board of directors or other elected officials?
A. A company’s board of directors has to adhere to an ethical standard and code of conduct. If they are harassing an employee, then there’s an obligation to take some action. In that case, because you’re dealing with the board, you would probably want to reach out to your employment counsel for advice on how to proceed. They are definitely breaching a code of conduct and arguably their fiduciary duty as well.
In conclusion, Bruce noted: "One of the important things to keep in mind is this is just totally fluid: it’s constantly changing. You’re going to have to take time to stay on top of this."
For more information on using social media in the workplace without getting into legal troubles, order the webinar recording of "Managing the Social Media Octopus: The Eight Tentacles Every HR Manager Must Master." To register for a future webinar, visit http://catalog.blr.com/audio.
Patricia M. Trainor, JD, SPHR is Senior Managing Editor of BLR’s human resources and employment law publications. She is also a member of the American Bar Association, the Connecticut Bar Association, and the Illinois Bar Association, and she is admitted to practice in Connecticut and Illinois. Ms. Trainor has several years of experience representing employers and school districts in labor and employment matters.
Steve Bruce is the writer of the HR Daily Advisor, the most-read HR publication in the US. He has also published many books (Seven Secrets of Managers Who Avoid Employee Lawsuits, Face to Face: Every Manager’s Guide to Better Interviewing, Best Practices for HR Managers), newsletters ("HR Manager’s Legal Reporter"), and training materials (the best-selling "Stop Sexual Harassment"), plus videos, CDs, and many more.