Why Every Employer Should Adopt a Social Media Networking Policy - HR Policy
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Why Every Employer Should Adopt a Social Media Networking Policy

By Kerry M. Lavelle

Article Date: 08-01-2010
Copyright(C) 2010 Associated Equipment Distributors. All Rights Reserved.

This month, the author sets the stage with how employee use of social media can hurt productivity as well as reputations – and what employers can and cannot do about it.

While it is not groundbreaking news, is it safe to say that the Internet has changed the way we operate our businesses and personal lives over the last 15 years? That question has a pretty obvious answer, but the more current version of the same inquiry is whether or not social media sites such as Facebook, MySpace, Twitter, LinkedIn, and many others, have changed the way we organize our time, our social calendars, our business calendars, and correspondence with other business and nonbusiness individuals.
I submit that use of many of the aforementioned sites, including engaging in “Googling,” is such an integral part of our business lives, that we cannot imagine our lives prior to the invasion of the Internet.
The purpose of this article is to provide to employers in the construction equipment distribution business with a general framework to think through company policies on the topic of management and employee use of online services intending to help the business. Do not mislead yourself by dismissing the importance of this subject by simply believing that you have a company policy governing “personal use of your business computers.” This article reaches far beyond the scope of simple personal use of a company’s computers. Oftentimes, the damage by employees is done during “off hours” on their own personal computers. This then begs the question, “How can I or do I have a right to control what my employees do on the Internet during off hours in the privacy of their own home or home computer?”
Eye-Opening Statistics
Facebook advertises that it has over 400 million active users. There are millions of blogs where individuals can express their own opinion on a plethora of topics, which are often unabated, unsupervised, unedited, and uncensored. The estimated numbers of Twitter users range between 14 million to more than 70 million. We are told that 75 percent of the organizations interviewed in Cisco’s 2009 survey primarily use social networks as a consumer-based social media tool. Thirty-one percent of all American CEOs are on Facebook. Moreover, it seems like social media sites are starting to take over and, for some, have become a mainstay for creating, publicizing, and viewing all of our daily events and information. ComScore’s 2009 digital year-end review shows that social networking now accounts for 11 percent of all time spent online in the U.S. A recent Gartner report stated that by the year 2014, social networking services will replace e-mail as a primary vehicle for interpersonal communication for 20 percent of business users. 
  • 80 percent of companies used, or plan to use, LinkedIn as a primary tool to find employees during the course of the year.
  • Around 64 percent of marketers claim to use social media for five hours or more each week during campaigns, with 39 percent using it for more than 10 hours per week.
Ninety percent of employees admit to periodically logging into their Facebook accounts during work hours, and 24 percent of employees spend more than one hour on social networks during working time. In 2009, 54 percent of U.S. companies decided to block social networks at work and 8 percent have already fired employees because of the use of Facebook during working hours. Seventy-four percent of managers surveyed believe social networking sites put their firms and their brand at risk. Fifteen percent consider the risks of social networking sites at the board room level, and only 17 percent have implemented risk mitigation policies or programs.
Productivity Affected
A July 2009 study conducted by Nucleus Research revealed that Facebook affects employees’ productivity at work. In order to explore the business productivity impact of Facebook, 237 randomly selected employees were interviewed about their use of Facebook. The results of that study showed that 77 percent of employees have a Facebook account and the average time spent on Facebook was 15 minutes, with some of the employees spending up to two hours on the social networking site each day.
As for the reason the employees stated for using Facebook during work hours, only 13 percent of employees had a business reason (e.g., to promote a product or an event), while an astounding 87 percent of employees could not define a clear business reason for using Facebook during hours they should have been working.
Given these numbers, companies can reasonably estimate average losses of 1.5 percent in employee productivity. While many employers are already dealing with low profitability rates, they cannot afford activities that decrease employees’ productivity.
Employer monitoring of employee Internet use is skyrocketing. Based on the Deloitte LLP 2009 survey, 66 percent of employers in the survey stated that they watched workers’ Internet connections and 45 percent stated that they tracked content, key strokes, and time spent at the keyboard. As expected, a high degree of management tracks instant messaging in chat rooms and monitors blogs, e-mails, and text messaging; but most important, 10 percent keep an eye on social networking sites. This is most likely done to determine what employees, disgruntled ex-employees, competitors, customers, and critics are posting about the company, its people, products, and services.
It’s All About You
Do I have your attention yet?
In this two-part article in CED, we will examine the rights of employers to track and monitor employees’ on- and off-duty Internet usage and social networking. After we examine the categories of monitoring employee use of social networking sites, we will examine the potential pitfalls and the realities and causes of action brought by employers and employees regarding this conduct. Last, we will make some suggestions of items to think about when developing the company’s social networking policy to protect the interests of the business.
Monitoring Employee Conduct to Prevent Reputation Damage of the Company
Interwoven in blogs throughout the cyberworld and YouTube, stories abound about remarks, and conduct of employees who, while not always and necessarily intended to be detrimental to the employer, have an end result of being damaging to the employer’s reputation. In the business world, “kids will be kids,” is no defense.
In August of 2008, YouTube viewers enjoyed the video of a Burger King employee taking a bath in the sink while others watched and enjoyed the high jinks.  The video made it to YouTube, MySpace, the health department, and to Burger King’s management. The employees were fired and Burger King issued an apology and some corrective action measures were taken. Similarly, KFC suffered a similar fate as female employees used a sink as a hot tub and posted their own pictures and video on MySpace and YouTube, failing to set the privacy settings on their MySpace page. The girls were fired and the incident was infamously immortalized on multiple sites.
Again, examples abound and in any of the aforementioned cases, proper employee conduct set forth in company handbook and policy and procedures manual is essential. As you will see throughout this article, many times the social networking sites, e-mails, blogs, and YouTube formed a basis for an employee termination, but limitations on such conduct must be memorialized in the company handbook.
Remember, oftentimes anonymous posts are not anonymous in cyberspace. Given enough incentive to uncover anonymity, the true user’s identity can be found. In the beginning of 1999 through 2006, Whole Foods CEO John Mackey posted anonymous messages on Yahoo financial boards about his own company and Wild Oats, using a synonym. Mackey disparaged the management of Wild Oats and questioned why any company would be interested acquiring Wild Oats.
Mackey was cited in an FTC lawsuit and the SCC also investigated Mackey’s postings to see whether he was trying to manipulate Wild Oats stock price before Whole Foods’ acquisition of Wild Oats. He was not found to have been liable for such manipulation.
Monitoring Cyber Defamation
Defamation, by definition, is actionable by anyone who suffers damages due to false written statements. Damages are a critical element of the tort, and business reputation has great value, notwithstanding the fact that measuring and quantifying the amount of damage due to defamation, is difficult to calculate.
Employers monitor social networking sites to measure and prevent cyber defamation. Again, as stated earlier, ordinary state laws apply and websites, blogs, and social media become the basis for the evidentiary pool of information for bringing defamation actions.
Monitoring for Breaches of Restricted Covenants and Disclosure of Confidential Information
Simply put, employers monitor social networking sites to make sure key employees, or former employees, are not in breach of existing restricted covenants in their employment agreements, or breach of fiduciary duty for existing employees. As is typically done, using some level of anonymity, corporate watchdogs track former employees that are bound by restrictive covenants and their interaction in the marketplace to make sure they are not stealing customers as they move from job to job.
There are cases currently pending in court regarding the information that is openly found on the Internet, social networking sites, and Google, versus information obtained fraudulently through anonymous corporate spies to ascertain information relating to former employees. Former employees typically sue for “invasion of privacy” when corporate creates anonymous names to track former employees, but these cases are now working their way through the court system.
With respect to both current employees and former employees, they should be monitored as to the disclosure of confidential and proprietary information. Company policies should be clear that the unauthorized use of corporate logos, intellectual property, systems, customer lists, customer names and addresses, other employees’ names and addresses, is absolutely forbidden from being shared at all, and moreover, on social networking sites.
Remember, “inside information” must remain inside and not disclosed to outside third parties. As you may recall in 2009, U.S. Congressman, Pete Hoekstra (R-Michigan), was called before the Senate Committee after he Tweeted about his exact whereabouts while traveling in Iraq.   The U.S. Pentagon has ordered a review of the use of Twitter and other electronic devices because of this conduct. Courts have ruled that employees’ disclosure of confidential information via electronic devices can be a legitimate basis for termination.
Be aware, and well aware: Poor investigation techniques by an employer will get company management fired or potentially criminally charged.
In a well known 2006 case, Hewlett Packard hired private investigators to help find the source of certain information leaks. The investigators used fake names and e-mail codes embedded with hidden tracking software and sought to track employee conduct. Their conduct was illegal, according to the courts, when they used pretexting, the act of posing as someone else in order to get phone records. As a result, the then-chairman of Hewlett Packard and the half-dozen board members either resigned or were fired. The chairman was charged with four felonies, as was the company’s senior counseling chief officer.
Monitoring to Prevent Improper “Friending,” “Endorsements,” and LinkedIn Recommendations
Due to the feature now immortalized by the popularity of Facebook, the term “friending” is now a common term used in our daily lives to describe one person’s act of accepting another’s invitation or request to share Facebook information and contacts, and, in turn, become part of each other’s network of friends or contacts. The use of the term “friending” has now expanded to similar other networking sites as well. However, one should be cognizant of the effects of endorsements and “friending” on social networking sites. Does it cause a conflict of interest? Does it prevent future objective reviews of employees?
While perhaps not relevant to the construction equipment industry, many judicial ethics advisory committees are prohibiting judges from “friending” attorneys that appear before them in court. This gives rise to a perceived conflict of interest that courts, at their highest level, seek to avoid. Similarly, in the private sector, “friending” multiple similarly situated customers that may compete against each other may put management in a conflicted situation, or at minimum, an uncomfortable situation.
What if you “friend” friendly competitors? That may give rise to antitrust allegations if you are in constant contact with competitors.
Be well aware that providing endorsements for employees may later come back and be problematic if the employees’ standards of work begin to decline and termination is imminent. Inevitably, similar to a dated favorable year-end review, the employee may defend his or her case by asserting that he or she was an exemplary employee, thus receiving a favorable recommendation from his or her supervisor, and such decline in the quality of his or her work was merely a pretext for termination truly based on age, race, sexual orientation, or any other protective class.
Monitoring Job Applicants’ Blogs, Social Networking Profiles, and Video Posts
With more than 400 million active users on Facebook alone, interviewers now can find almost all young job candidates on Facebook, MySpace, or LinkedIn and take an unfiltered look at the real person behind the resume. In June 2008, Careerbuilder.com did a survey of over 2,600 hiring managers and found out that 22 percent screen job seekers using social networking sites.  In August 2009, a similar survey done by Careerbuilder.com found that 45 percent of the employers polled said they research job candidates on social networking sites such as Facebook and MySpace. Thirty-four percent of the managers use this information to decide not to hire the applicant, and 24 percent use the information to confirm their decision to hire. Another 11 percent plan to start using social networking sites for screening.
Not surprising, 35 percent of hiring managers said that the following information was used not to hire candidates with:
  • Drinking/drug photos – (44 percent)
  • Poor communication skills – (29 percent)
  • Candidate bad-mouthed their previous employer, co-workers or clients – (35 percent)
  • Candidate shared confidential information from previous employer – (20 percent)
  • Inappropriate or provocative photos – (53 percent)
  • Lying about qualifications – (24 percent)
Eighteen percent of hiring managers polled used the information that they gathered to confirm hiring decisions, including such factors as:
  • Profile provided a good feel for the candidate’s personality and fit – (50 percent)
  • Profile supported candidate’s professional qualifications – (39 percent)
  • Candidate was creative – (38 percent)
  • Candidate showed solid communication skills – (35 percent)
  • Candidate was well rounded – (33 percent)
  • Other people posted good references about the candidate – (19 percent)
  • Candidate received awards and accolades – (15 percent)
There are potential pitfalls for employers using social networking sites to screen applicants. It is patently obvious to hiring managers and management of corporations that you cannot, during the interview process, legally ask an applicant about his/her age, sexual orientation, religion, national origin, disability status, or personal health information and other similar categories of questions. Since you cannot ask those questions and make hiring decisions based on those “protective classes,” you cannot then bypass federal law by finding out that information by “Googling” the applicant or from a comprehensive review of their social networking sites and then prevent the employment opportunity based on those improper classifications. Moreover, Facebook, MySpace, Twitter, and other social networking profiles can be erroneously created, so hiring personnel cannot always rely on the information contained therein.
I know what you are thinking: That if any information you found on your online research of the job applicant appeared unfavorable to you, you would not hire them and you would not necessarily articulate any particular reason for not offering the job.
My advice to management, as is similar to employees, is to be very mindful of the words that you say, e-mail, text, post, blog, or tweet. Any misconstrued statement can come back and be used to form a basis for an applicant’s alleged discrimination case against the employer as a pretext for a missed employment opportunity.
More to Come
Next month, we’ll address further monitoring issues, termination scenarios, and how to develop your social media policy.

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Article Categories:  Human Resources