Time & Attendance
By Sarah Fister Gale
Jun. 21, 2012
It may not be illegal to ask job applicants for their Facebook password, but doing so may cause you to lose the best job candidates—and infuriate the employees you already have.
The House of Representatives in March killed legislation that would ban employers from demanding workers’ social networking passwords—after several organizations were criticized for demanding access to candidates’ Facebook pages as a condition of potential employment. In the same month, an outraged Facebook threatened to take legal action against companies that requested passwords to their users’ pages, arguing that that violates the company’s privacy guidelines.
This public conflict underscores the broader challenge that companies face when building a social media policy that support the corporate brand without infringing on the rights of employees or job applicants.
Social media policies that define what employees can talk about and how employers will monitor them help organizations protect their intellectual property while giving workers a framework for online communication.
The Society for Human Resource Management says 40 percent of organizations have a formal social media policy, and more than half of these policies include a statement regarding the organization’s right to monitor social media usage. The policies also commonly include a code of conduct for employee use of social networking for professional purposes (68 percent) and personal purposes (66 percent).
But if these policies are too heavy-handed they will backfire, says Aaron Messing, information privacy lawyer with OlenderFeldman in New Jersey. “Bad social media policies that are overly intrusive don’t make good business sense,” he says. “They alienate employees and may generate bad publicity.”
They can also put companies at risk for legal action, says Mark Schmit, vice president of research for SHRM. “It may not be illegal to access private information online, but if you find information that’s not job-related you could run into problems.”
If for example in doing searches of a candidate online, a recruiter discovers that a person is pregnant, or gay or affiliated with any number of other protected classes that knowledge can be a liability if the person isn’t hired.
“It’s information that you don’t want to know,” Messing agrees.
However, there is a lot of information a company does want to know about how its employees communicate online, particularly once they are speaking as a representative of the brand.
The trick is creating a policy that is simple, straightforward and encourages positive communication about the company, says Jeremy Goldman, e-commerce and direct-to-consumer operations executive at Iluminage Inc., a beauty-care-products company and Unilever subsidiary. “No one is going to read a 20-page social media handbook,” he says. “It’s better to lay out basic guidelines for what they can and can’t say, and end with ‘if you aren’t sure, use common sense.’ “
A good policy defines how employees should talk publicly about the business and its products, but it doesn’t discuss how employees communicate in private personal forums, and it doesn’t trample their right to free speech.
Employers should note that in some cases, social media comments are protected, as was proven last year when the National Labor Relations Board reached a settlement with a company that fired an employee for bad-mouthing her boss on Facebook, as part of the settlement, the employer, American Medical Response, agreed to revise its social media rules to ensure that employees’ rights to discuss working conditions are protected.
The NLRB also released a memorandum last year that argues that the use of profanity or name-calling on social media may be protected by federal freedom of speech laws, whether an employee is union or nonunion.
While laws regarding employees’ social media rights are still evolving, employers should tread carefully when making decisions about whether to fire or reprimand employees for comments made in these environments.
Keep the policy clear and simple, says Goldman of Illuminage, or you risk stifling the very conversations you want to foster. He recalls a situation in a previous job at L’Oreal when a new PR rep was publicly reprimanded for posting information online about a product that hadn’t been released yet—even though the social media policy didn’t explicitly prohibit what she had done. “It was demoralizing for her and after that she became afraid of championing the brand online,” he says.
This is one of the biggest risks of an overly rigid or too-vague social media policy. “You should want people promoting your brand,” he says. But if they are afraid they will get in trouble, they won’t talk about it at all.
Particular care must be given to younger workers, who are accustomed to sharing their every thought and experience via social media, says Alicia Laszewski, vice president of communications for CustomerContactChannels, or C3, a customer management services company in Plantation, Florida. “If they have a problem, they go to Facebook,” she says.
It is better for the company if you educate workers about what’s appropriate rather than try to stop the behavior altogether, she says. Recently for example, an employee posted a question about a discrepancy in her paycheck on the company’s Facebook page. “She should have taken the question to HR,” Laszewski says, but instead of deleting the post and reprimanding the employee, she responded to the comment.
On the page she posted: “That’s a great question and we will have an HR person get back to you,” then offline, she suggested that in the future the employee address such questions directly to HR. “Unless something is offensive or a legal concern, we would never delete it,” Laszewski says.
And that gets to the heart of what a social media policy is designed to do. At C3, social media is seen as a powerful tool for communicating with customers, and Laszewski wants employees speaking positively about the brand as much as possible.
So she’d rather deal with a few communication misfires than suppress the comments altogether. “We believe that if we treat employees well and build a positive workplace culture, employees will communicate that through social media,” she says. “That gives us the confidence to put our culture on display.”
Sarah Fister Gale is a writer based in the Chicago area. Comment below or email firstname.lastname@example.org.
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