At the Speed of the Internet: It's Time to Update Your Social Media Prevention Policy

Get ready to recycle. If your Social Media Policy was written prior to January 2012, it is now trash. According to the recent Operations Management Memo issued by the National Labor Relations Board (NLRB's) Acting General Counsel on January 24, 2012, social media policies that:

• make broad prohibitions against "disparaging" managers
  
• make broad prohibitions against disclosing confidential information
• broadly prohibit employees from using the company logo
• require employees to use disclaimers, such as "these opinions do not reflect the opinions of my employer"
  
• use a "savings" clause, such as "this policy is not intended to interfere with an employee's rights under the National Labor Relations Act"

are too broad.

(Remember, the Memorandum gives guidance to employers in how to craft policies in a manner that avoids infringing on employee's National Labor Relations Act, Section 7 rights. The actual limits on an employer's ability to regulate employees' social media activity has yet to be developed or addressed by the NLRB or by the federal appellate courts that review its decisions.)

In my experience, that is almost every Social Media Policy that I have come across to date. Therefore, in order to comply with the new Acting General Counsel's Memorandum's recommendations, it is time to revise or redraft your company's Social Media Policy as a narrowly drafted policy. Even if your company only recently created a Social Media Policy in the past year or two, it is time for a new one. Welcome to the speed of the Internet.

After reading and analyzing the Memorandum and cases mentioned therein, I have applied the recommendations to my own Sample Social Media policy and the 2012 Newly Revised Proactive Lawsuit Prevention Sample Social Media Policy is here for your viewing pleasure.

Take a look at the recent Memorandum and my policy and let me know what you think.

Remember, this is a SAMPLE policy and should not be considered legal advice. It should be reviewed by your own employment counsel to ensure it is consistent with the laws of your state, your industry and your company mission and goals. It also must be consistent with the many policies referenced within it that are already part of your company handbook or procedures.

As an aside, I'm sure this will be a hot topic at the upcoming SHRM Legislative and Employment Law Update. On the first day, 3/5/12, I will be on a Social Media Panel of experts called "#theafterchat" after Eric B. Meyer's presentation, "Social Media for HR: Practical Guidance from a Generation Y Attorney." Hope to see you there.

Social Media Recruiting: TMI (Part II)

Best Practices for Recruiters to Prevent Lawsuits
Part I of this series focused on the legal risks that recruiters should be aware of when they recruit using Social Media. In Part II, I will discuss some Best Practices or Guidelines for Recruiters to implement on the job so as to avoid these landmines.

A company must have a Social Media Policy for all of its employees, but Recruiters, as employees who use Social Media as part of their role on a daily basis, must have enhanced rules or guidelines for their specific and unique role in the organization. This will ensure that recruitment is handled in a consistent manner throughout the organization, regardless of who is doing the recruiting or where the recruiting takes place.

Most Social Media policies that are specific to recruitment are called “Best Practices” as opposed to “Policies.” This term seems to highlight the flexibility required when recruiting unique individuals as “Best Practices” can be interpreted as “suggestions” as opposed to mandated rules. It is important to consider whether your organization wants to allow the recruiter to have discretion as to whether to implement the suggested practices or whether it makes more sense to mandate the requirements by calling them “rules” or instituting a recruitment “policy.”

Whether your company calls it “Best Practices” or a “Recruiting Policy” or something else, recruiters should do the following when recruiting while using Social Media sites:

• Identify which Social Media sites your company will use in recruitment.
• Identify yourself as a recruiter for the Company. Act as a Company Representative.
• Be consistent in your company's recruitment approach.
• If possible, insulate protected category information from the hiring manager.
• Maintain proper documentation and tracking throughout the recruiting process.
• Create a user experience that highlights the company as a wonderful place to work.
  
  

A Monster, Indeed!

Before incorporating Social Media searches in recruiting, the organization should identify the Social Media sites they wish to use, focusing on securing relevant, work-related information. The choice should not be random (or based on the sites that the C-Suite has heard of.) For example, According to Kissmetrics, Digg has the largest demographic of users with a graduate degree and Stumbleupon is popular among graphic designers. Each site has unique user information and should be selected with careful consideration as to why/how it will help your organization recruit effectively. The reasons should be documented in the event that the company needs to offer a business justification later on.

For example, Unisys, an Information Technology company, explains its recruitment strategy this way, “In aligning with our corporate strategy, there were four main social networks that we wanted to focus on for our recruiting effort: YouTube, Twitter, Facebook, and LinkedIn...In addition to these big name online communities, we worked closely with Unisys regional operations around the world to identify niche social recruiting sites that worked well for their regions, such as Orkut in India and Brazil. Facebook, for example, was not allowed in China, so we are exploring alternative social media outlets there. Unisys uses each social media outlet differently...LinkedIn, on the other hand, is a network whose members are looking for information about and opportunities for professional growth. As such, it’s become a powerful and cross-promotional part of our social media strategy. …After all, hiring the right talent is a business objective, not simply an HR objective."

The search should seek publicly available information. Recruiters should not allow the searcher or others in the recruiting department to “friend” an applicant in order to see private profile information. Recruiters must remember that all “conversations” and “searches” can be retrieved and used as evidence in litigation. Recruiters should be careful and conscious when engaging in online conversations about discussing “protected category” or personal information. Recruiters should remember that even though they are/have “Friends” and “Fans,” that they are actually creating professional connections and to act accordingly in all communications.For example, P&G wants its company recruiters to use Social Media to create relationships with Generation Y as part of P&G’s Next Generation Attraction campaign. In pursuing this business initiative, P&G is clear that it wants the students (future hires) to initiate the first contact with P&G. As part of its Social Media and Recruiting Best Practices, it states, “Etiquette: Students can often feel anxious about companies’ access to their personal profiles. Therefore, our stance in using social media tools for recruiting will be passive. When communicating with students, it is imperative to let the student initiate first contact with the Company. Focus on maintaining communication with only those students that have expressed an interest in P&G – from there, please feel at ease using sites as communication tools to build relationships with candidates. Additionally, we should never send mass messages or “spam” candidates.”

Let’s Be Crystal Clear

Recruiters must be transparent about their role as recruiters and that they work for your company when recruiting candidates online. This will not only ensure that your company does not run afoul of FTC transparency requirements, but will allow talent to identify them as trusted allies in the hiring process. It is important, however, that you inform your recruiters to not only identify themselves and their company while engaging potential hires online, but that they must either keep their personal sites separate and use a disclaimer to set forth that their personal opinions are their own, or in the alternative, that they solely act as company spokespeople, do not have personal sites, and act with all of the responsibility that this role entails.

Recruiters should use the official company logo and brand as official company spokespeople acting in that capacity. Continuity of logo, brand and corporate strategy should be consistently used in Social Media, even by recruiters, so as to ensure potential hires know and trust your company as a trusted potential employer. Finally, company recruiters should be told clearly that company sites, logos and the followings that gather there are company property. That means that even when the recruiter leaves your company, that the recruiter understands that they may not unilaterally change the profile name to their own and take the “Friends” and “Followers” with them as their own following.

For example, in a case that may be one of first impression, Phonedog, a mobile news and review company, is suing a former employee for “taking” 17,000 Twitter followers with him when he left the company. According to Forbes.com, Noah Kravitz worked as a mobile phone reviewer for Phonedog for four and a half years. He had been part of a “virtual office,” so when he left the site in October 2010, the only thing he really ‘packed up’ was his Twitter account. He had started it in 2007 and chose the Twitter handle @PhoneDog_Noah. When he left Phonedog, he had approximately 17,000 followers and changed his Twitter handle to @noahkravitz. Phonedog is suing Kravitz for the value of those followers and for stealing their trade secret information (in the form of followers, much like a customer list) and Kravitz’s password. Although Kravitz was not a recruiter for Phonedog, this case stands represents for employers that they must set the ground rule out early that recruiters’ relationships made online and on behalf of the company are proprietary information owned by the company.

Consistently Consistent

Recruiters must approach online resumes with a consistent approach. That means that searches should be conducted either before the initial interview or after the first phone screen, but at the same time for every applicant. The same process should be followed for each candidate without regard to protected categories. If the company is not conducting Social Media screening for every applicant, than the company should objectively designate particular job categories or departments that are included and consistently follow those guidelines. Consistency based on objective criteria and job qualifications will help your recruiters defeat a claim that they had intent to discriminate against any one candidate. Consistency is the key. Therefore, in larger companies that employ many recruiters, (especially those that work virtually and do not have the opportunity to talk-shop with their peers) training the recruiters about these consistency requirements is critical.

Every applicant must be informed that the application process includes a Social Media check, if this is part of the process. In some states and for some applicants, this will include a notice and waiver, as we discussed previously, to comply with the federal and state consumer reporting requirements. All of this must be consistent and proactively prepared ahead of time with every recruiter having a thorough understanding of the company’s consistent processes. Recruiters must understand the unique Social Media “paperless process” of online recruiting from posting a job description, receiving the resumes, following up with a contact for interviewing, providing the appropriate FCRA notice/waivers, ending eventually with an offer letter. If all of this is done virtually, the recruiter must be a literal “expert” on topic so as to field the email questions that many applicants have throughout the process. For example, is your recruiter prepared to explain the notification process when an adverse action (no hire) occurs based on information that surfaced as a result of a Social Media screening of the applicant? Training recruiters about this “paperless process” can prevent an uniformed mistake from turning into a lawsuit, evidenced by your recruiters smoking gun email.

Watch out for the rogue manager/interviewer who does not know the laws about lawful recruitment and hiring. I have seen many companies invest huge sums in educating the recruiters and hiring managers about lawful hiring practices and interviewing, only to have an applicant interview one-on-one with the person they will be working with or working for…who knows nothing about these laws. Without proper education about protected categories, for example, a casual conversation between potential colleagues will quickly trail to questions about the kids, the wife, and even religious practices. All of which are taboo in the interview process. To make matters worse, when the interview is conducted via chat or by email, as is often the case when recruitment is done virtually, these inappropriate questions leave an online trail that can be used against the employer in litigation.

I Did Not Just See That

If only we had the ability to erase some things from our memories. Certainly, the eighties for me are long gone, but that is not by choice. By now you understand that there are serious legal implications for employers who know personal information about applicants, such as their age or that they are pregnancy that give rise to discrimination lawsuits. The idea is not to pretend that you do not know this information if you do know it, but rather to take as many steps as possible to show that all recruitment and hiring decisions are made based on legitimate job criteria, qualifications and experience, rather than on the personal information we learn about candidates.

Because Social Media undermines that effort simply by providing recruiters with pictures of applicants and their user profiles, the best strategy for companies that can have more than one person doing the recruiting and hiring or who outsource this, is to insulate the decision maker from the recruiter or screener who may see protected category information at first blush (pun intended). The searcher or recruiter may cover up, redact or eliminate the protected category information, which will allow the ultimate decision maker to decide whom to interview or hire based on the information that is not protected under the law, such as how many years of experience the employee has had doing the job for others. That may not help a recruiter avoid a claim that there was discrimination in the recruitment process, but it will help defend against a claim of discrimination in the hiring process, which is more common, as vested applicants are more likely to sue than those who never reached the interview stage.

Am I Being Redundant?
It is my perception that employment lawyers tend to fall into two categories: those that advocate a lot of documentation by managers and those who do not. The latter fear the smoking gun, which emanates from an overly documenting, yet untrained workforce. The former group says document everything. I fall into the former group. I say, “document, document, document.” Am I being redundant? In online recruiting, one Best Practice, in my opinion, is for recruiters to consistently document the results of the Social Media searches, (removing any protected information). Search results should be maintained consistently with the organization’s record keeping policies. Also, the legal, legitimate reasons for ultimate hiring decision should be documented. If the company rejects applicants based on Social Media search results, this decision should be based on a legitimate, job-related reason (for example, the applicant lied on their resume about having a graduate degree) and documented.

Don’t forget to inform all of your employees that they should not be doing their own Social Media searches, investigations or “Googling” candidates, as tempting as that may be.

You Will Love It Here
Another key distinction between recruiting online as opposed to traditional means of recruitment is that recruiting employees through Social Media requires recruiters to actively create a user experience for the applicants. That is, recruiters should not just post jobs on job boards, they should also engage in conversations about recruiting, about their company’s unique talent, about what it is like to work at the company, about the amazing initiatives or causes that the company supports and responding to job seekers questions, concerns and commentary. Therefore, another Best Practice for recruiters is to leverage the unique nature of Social Media to engage potential applicants in dialogues that will ultimately, but indirectly, attract the best talent to your company. That being said, recruiters must be diligent about monitoring these Social Media conversations. When the conversations turn "ugly" or a disgruntled ex-employee begins to post, recruiters must partner with PR and Legal to ensure that the company's brand is protected and no "protected concerted activity" is taking place, before the recruiter can "react" in writing.

In Careerbuilder’s “Best Practices For Using Social Media to Recruit,” it says, "Create A User Experience: Social Media is about creating an open dialogue and building relationships with others. Create a space where current and potential employees can interact – sharing success stories about working with your organization – and responding to job seeker’s questions. Listen Learn and Engage: The most important thing you can do on any site is to listen to your audience – both what they are saying to you and what they are saying about you. Don’t be afraid to respond: There is no better way to build trust with your community. Highlight Specific Jobs: Go beyond posting all your job openings: Provide talent unique job information about the company itself. Help candidates understand why your company is the right place for them. This is the most important practice, in my opinion. Engaging the community in dialogue about how amazing your company is to work for and how they can help your company succeed. Do not, however, make any promises that guarantee employment or create a contract for employment by discussing start dates, wages or benefits until the offer letter is sent out.

Another example of leveraging Social Media to recruit talent is the US Army’s official game "America's Army" that allows players to virtually participate in training missions and fight one another online. "America's Army" is a free-to-play game that has become a more effective recruiting tool for the Army than all other Army advertisements combined. In addition to attracting recruits through gaming, the America’s Army website provides inspiring personal video stories of soldiers who “found their strengths with an Army lifestyle.”

Certainly, there are many potential lawsuits to “fear” when engaging in Social Media recruitment. The “fear” however should not preclude you or your company from advancing, along with technology, into the foray. Rather implement these Best Practices, and do not be afraid to enjoy the benefit that comes from Social Media recruiting, which is getting to know your audience, engaging them in conversations about what you love, namely recruiting for your company or organization, and brag about the many positive accomplishments it has achieved.

Do not fear the Social Media savvy applicant. Many employers are wary of employees that use Social Media a lot, especially when the job for which this applicant is being recruited would not benefit from this skill set. They question whether they should even hire an executive assistant who in her spare time blogs voraciously about cooking and has over 15,000 followers dedicated to her Twitter profile. Many states, including California, do prohibit discrimination in the recruitment and hiring process based on lawful off-duty conduct. Deciding not to hire someone just because they are active Social Media users, may qualify as lawful off-duty conduct. The decision to hire or not to hire should always be based on legitimate, objective criteria related to the specific job qualifications.

*The use of company examples and policy examples, herein are not an endorsement by me of any of these practices or a legal opinion about these company practices or policies, which I did not write or review.

Social Media Recruiting: TMI (Part I)

How Recruiters Can Prevent Social Media Lawsuits (Part I)

According to a 2011 Society for Human Resource Management Survey on the topic of recruiting online only 18% of the companies surveyed use Social Networking sites to recruit talent. According to the Survey, “It appears that only a small number of organizations are using online search engines and social networking websites to screen job candidates. The primary reasons for not using these methods are the legal risks, the lack of verifiable data and the lack of the job-relatedness of much of the information found online.”

Although there are true benefits to recruiting online, namely access to a wider diverse talent database, efficiency in the computerized process of screening qualified candidates, reduced time-to-hire in a 24/7 search method and reduced recruiting costs, just to name a few, the “fear” of lawsuits is still holding companies back from using Social Media to assist them in recruitment. Why do employers think that Social Media is “riskier” than traditional recruitment methods? Because Social Media is “transparent” with information – or should I say, “TMI” (Too Much Information.) That is, the information that recruiters have long been trained to “avoid” such as not asking an employee how long he’s been married, or what church his family visits on Sundays, in order to avoid a claim of discrimination, is transparently glaring at the recruiter via the employee’s Social Networking profile.

The most obvious difference between recruiting talent online using Social Media sites, such as LinkedIn, and recruiting offline, using traditional means, such as newspaper advertisements for example, is the profile picture of the potential candidate that often accompanies their online site resumes. Why is the “picture” of a candidate or their “user profile” such a problem for recruiters now? Because the picture of your potential hire is worth a thousand words.

What is visible from a LinkedIn profile picture that gets a recruiter into legal trouble? From a single profile photograph, a recruiter can guess a candidate’s gender, national origin, age, race, color and ancestry, among other things. From a user profile, a recruiter can guess about marital status and sexual orientation. From Facebook Wall postings or other blog postings, a recruiter can guess religion, medical condition or disability, or even genetic information. In doing so, a recruiter is open to allegations that hiring decisions are based on “protected categories” that federal and some state laws, such as California, prohibit as categories that can be considered in making a hiring decision, including the recruitment process. Collectively, these anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Equal Pay Act of 1963, the Rehabilitation Act of 1973, and the Genetic Information Nondisclosure Act of 2008, among others federal statutes as well as state statutes, including California's Fair Housing & Employment Act, and local ordinances, prohibit recruiters on behalf of the their employers from intentionally discriminating in the recruitment and hiring process.

For example, your company wants to recruit talent for an open Customer Service position and you have identified a hot-shot that seems perfectly qualified for the role. The hot-shot interviews throughout the company and seems a good fit until one manager informs you that she isn’t a “culture fit” because her LinkedIn profile shows she is a member of the Muslim Business Network group. Using this information as the basis for any employment decision, including the decision not to hire or recruit can get you and your company in legal hot water and violates the anti-discrimination statutes which prohibit discrimination on the basis of religion.

As a fun exercise, check out your own LinkedIn or Facebook profile and see how many protected categories you can infer. Someone recruiting me can identify from my LinkedIn profile and my linked blog entries information about my gender, my marital status, my national origin, my religion, my race, my sexual orientation and my age (from my year of graduation, not from my picture, which is ten years old.) What can I say? I haven’t looked that good since.

Moreover, these anti-discrimination statutes also prohibit recruiters from unintentional discrimination in the recruitment process by prohibiting conduct that creates a disparate impact on the workforce and is also not justified by a business necessity. The EEOC uses this example to explain disparate impact in recruitment: “An employer's reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic.” Disparate impact is a problem for recruiters using Social Media because of the transparency about these sites’ user’s demographic. For example, if your company chooses to only recruit talent through Twitter, posting tweets about open positions on your company’s Twitter profile, this can expose your company to a disparate impact claim. Quantcast.com has posted Twitter’s user’s demographics as 67% Caucasian and 3% Asian. An Asian applicant might argue that the recruitment process has a disparate impact on Asian applicants. Without a business justification for this, the company will be hard-pressed to demonstrate otherwise.

Certainly, one might think that the best way for a company to protect itself from a claim of intentional discrimination in the recruitment process is to outsource the recruitment process to a third party that will screen the applicants and eliminate or redact “protected category” information, thereby allowing the company to assert a defense if needed that it was not aware of the protected characteristics throughout the hiring process. This is, in fact, what many companies do. However, these are “best laid plans” because in reality, outsourced recruitment gives rise to additional statutory requirements, namely, compliance with the Fair Credit Reporting Act (FCRA) and its state statutory equivalents.

In June 2011 the Federal Trade Commission (FTC) published a blog article, ‘The Fair Credit Reporting Act & Social Media: What Businesses Should Know,’ which clearly stated that employers who use outsourced “Credit Reporting Agencies (CRAs)” are obligated to comply with FCRA. The FTC said, “Employment background checks can include information from a variety of sources: credit reports, employment and salary history, criminal records–and these days, even social media. But regardless of the type of information in a report you use when making hiring decisions, the rules are the same.” Therefore, the Companies providing reports to employers–and employers using reports–must comply with the Fair Credit Reporting Act.”

Certainly, handing over Social Media screening in recruitment to a third party may seem like the best way out of a discrimination allegation, but in doing so, you may be allowing the third party to substitute their judgment for yours. In a recent online Wall Street Journal article, Kim Harmer, a partner at Harmer Associates, a Chicago based recruiting firm, stated "I look at their Facebook and see how they approach what they put on it. Is it immature? Appropriate or inappropriate? I'm not judging their activity but looking at how they communicate what they do and their thoughts and their judgments to the public as a reflection of what they will do with clients and team members." Although the use of outsourced Social Media recruiting and screening agencies can allow an employer to filter out protected category information, ultimately, the employer is also taking a legal risk by putting their trust in another’s judgment to determine the criteria for screening out applicants and redacting information.

Of course, an obvious solution is to not screen applicant’s Social Media activity at all. Certainly, this is what the 82% of those surveyed by SHRM are thinking. Unfortunately, this also leaves an employer vulnerable legally. An employer who could have easily discovered an applicant was terminated for cyber-bullying his former coworker by simply viewing his public Facebook postings, may be accused of negligent hiring when that employee repeats this behavior after your company hires him.

So, what can employers do to avoid the double-edged sword of online recruitment? First, in order to avoid a claim of intentional discrimination, employers must be able to justify that the recruited employees are being recruited based on objective, measurable job related qualifications and that these are the only qualifications being considered. This is accomplished with a well designed job-description, carefully crafted interview questions that ask about job qualifications, not personal characteristics, and training everyone who interviews the applicant or meets the applicant about legal hiring practices and protected categories. If the employer outsources the Social Media screening process, a carefully designed list of sought-after qualifications should be designed by the employer so as not to “hand over” the process to a third party that may not understand your company’s needs. Finally, the employer must ensure that the third party recruiters are adhering to the credit reporting statutes, both state and federal throughout the process. If the process is not outsourced, it is wise to ask applicants to sign Social Media waivers anyway, thereby notifying them that their Social Media activity is being evaluated in the process.

It is not wise to require your applicants to give you their passwords to access their high privacy setting or “pretend-friend” them to see information you think they are hiding from you. The City of Bozeman, Montana required applicants to supply their username and password information to Social Media sites, but the public outcry against it made them curtail this practice. Whether unlawful or not, your company may run afoul of the Terms of Use of some Social Networking sites that prohibit sharing passwords or the Stored Communications Act by “asking” for passwords, as most employee-applicants will want the job so badly that they will “agree” without truly wanting to give you this information. Notwithstanding, surreptitious means for gaining information is never a good employment practice.

I know what you are thinking. What’s the point? If you tell them you are going to check their Social Media, then they will just clean it up or delete their drunken party twitpics. Now, how will you really know if your potential new-hire has a cocaine addiction or a penchant to bad-mouth his supervisors? But, the legal truth is, if you want to screen your potential employees, legally, without exposing yourself to increased liability, the only way to do it is to tell them you are going to do it, get their permission to do it, and then if something bad pops up, give them a chance to explain it. In the end, it isn’t about “catching” someone in the act of online foolishness, but about making sure that the person you hire is the “right” person for the job, based on the objective, qualifications of the job or based on the company’s stated goals and values.

In order to defeat a claim of disparate impact, the best practice is to diversify the online Social Media sites you use so that one site’s demographic profile does not define your recruitment strategy. Second, use an online aggregator, such as indeed.com or careerbuilder.com, which will aggregate from various Social Media sites. Third, compliment your online recruitment strategy with traditional means, such as paper postings, internal job postings, and college and university recruitment and job fairs. The more diversified your approach, the more diversified the pool of applicants. Thus, defeating a disparate impact claim.

It is a good practice to include offline recruitment as part of your recruiting strategy if for no other reason that some people do not have access to these sites or prefer not to participate in Social Networking or share information on the Internet, including their personal phone numbers, which would be something that one might include on a resume.

Certainly, if your decision to recruit online is based on reducing the costs of recruitment, implementing all of the above strategies will undermine this economic purpose. If that is your motive, than the best advice is to do your homework about the sites you choose to recruit from. Research and learn their user’s demographic. Make an informed decision based on the statistical information available to you. In other words, do not go blindly into the night of recruiting online. Know the publicly available demographic information of the sites you are using for recruitment purposes before they are used against you. Remember, that a business justification can defeat a disparate impact claim. If you need your new-hire to be bilingual in English and Spanish, it may be justifiable that you only posted the job on ihispano.com. Therefore, giving due consideration to the business justification for your open position is worth it. Another good idea is to always post and promote your company’s positions on your own company’s website. This will open the job to the entire web and defeat a claim that you limited the recruitment process based on protected categories. Finally, always include the fact that your company is an “equal opportunity employer” on all job postings. Thereby, encouraging all qualified applicants of any color, gender, religion, or condition to apply for the position.

Part II of this series will focus on Social Media Recruiting
Best Practices for Recruiters

I'm Perfect. Why Should I Change?

I’m Jewish. Shocking - a lawyer born Katz and married to a Pritikin, who knew? Being, Jewish, I have just come out of High Holiday services where I celebrated Rosh Hashanah, the Jewish New Year. One of the things we do on the New Year is reflect on the past year to determine what types of conduct or behavior we can improve upon for the next year. This is actually something that I feel is an important corporate lesson to pass on to the many Human Resource professionals who read my blog (thanks to all 7 of you.) It is also a good time of year, in September/October for this type of reflection, as opposed to January 1, the other New Year, because it is this final quarter when many of you are preparing your Proposals for Training to the budget committees or business group for approval. Keeping in mind that my business mission is to proactively prevent lawsuits, it is my opinion that two critical topics have been glossed over or absent from many companies training agendas: 1) Preventing Social Media Abuse and 2) Preventing Retaliation Lawsuits. I have blogged and taught on these topics in the past year a great deal in order to raise awareness to these two areas where I believe companies are increasingly vulnerable to related litigation yet corporations are doing the least to prevent them. Certainly, you may read my rationales for this bold assertion in my previous blogs on Social Media and Preventing Retaliation. In a nutshell, Social Media Abuse is the “smoking gun lawsuit” of the future and Retaliation lawsuits are the #1 claim being made in the nation.

Perhaps preventing lawsuits isn’t a good enough reason for you to change the stellar Training Budget or Proposal that you put together last year that you know will be approved if you only switch out 2011 for 2012. If that is what you have in mind, let me relay a humorous anecdote that the rabbi told during his service yesterday. He said a manager was upset that after 20 years of dedicated service to his company, he was passed over for promotion at his company. The promotion was given to another gentleman who had been with the company for only 5 years. When the 20-year veteran complained that he had more tenure and demanded to know why he was passed over, the HR professional responded that the young man was bringing more experience to the job. The veteran asked, “How can that be so?” The HR professional explained that the other man was bringing 5 years of experience to the role, while the veteran was merely bringing one year of experience that he had performed over and over again for 20 years. The morale of the story that the rabbi conveyed was that people need to continue to grow and learn, whether it be in life or their jobs. We need to continue to push ourselves each year to learn new skills and have new experiences, instead of repeating the status quo each year. I would add, that for HR professionals, the onus is on this department to ensure that all of your employees are given the opportunities for new growth through trainings on topics that are newly relevant and impactful, with follow up to ensure that the trainings are implemented or transferred down the line throughout the year.

In designing training proposals, keep this in mind. Ask, “What topics and skills do my managers want/ need to know about to help them “lead” employees best in next year?” One of the biggest gifts you can give managers is the peace of mind that they know the rules and laws so that they can manage their teams without the worry of being sued for their missteps. The two topics I think that are critical for 2012 are trainings that cover Preventing Retaliation Lawsuits and Social Media Abuse. Happy New Year.

Green Light, Yellow Light, Red Light

How to Abide by NLRB’s Social Media “Traffic Signals”

Social Media use is altering the employment law landscape in many ways, but the most recent trend is emerging from the National Labor Relations Boards (NLRB’s) aggressive protection over an employee’s right (whether the employee is a member of a union or not) to use social media sites as a venue for “protected concerted activity” as it is defined by Section 7 of the National Labor Relations Act (NLRA).

On this topic, two beneficial documents have been published recently to assist employers in drafting their social media policies and in navigating social media disciplinary decisions so that the employer does not violate the employee’s rights in this arena.

• On August 5, 2011, the United States Chamber of Commerce issued a helpful “Survey of Social Media Issues Before The NLRB” (“the Survey.”) The Chamber had sent a Freedom of Information Act request to the NLRB and received 129 cases back. According to Michael Eastman, the Executive Director of Labor Law Policy at the US Chamber of Commerce, “the issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
  
  
• On August 18, 2011, the NLRB’s Office of the General Counsel released its own Memorandum that summarized the most recent social media cases issued by the NLRB (“the Memorandum”.) In the Memorandum, Associate General Counsel, Anne Purcell, states, "Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media."
  

From the Survey and the Memorandum employers can gain insight, not only into how to narrowly draft their own social media policies so that it does not prohibit conduct that might be “protected concerted activity,” but also how and when to discipline employees who violate their internal policy. Since I have previously blogged about essential provisions of a social media policy and provided my own Sample Social Media Policy (which carves out for Section 7 protected concerted activity) this entry will focus on employer's disciplinary decisions when an employee acts in contradiction to the company's social media policy.

Proactive Lawsuit Prevention Strategies for Social Media Abuse Related Disciplinary Actions

Although the Survey and Memorandum do not explicitly set forth clear rules for employers to abide by, employers can infer “Traffic Signals” from these documents to obey when determining how and when to discipline employees for social media use that undermines the employer’s interests. The traffic signals for employers are:

Red Light.
STOP employer. This is the instance when an employee is using social media in a way that may undermine or threaten the employer, but the employer should not discipline or terminate the employee for this social media use. Red Light employee actions exist when

1) the employee is using social media to create a site or page or use a site or page where the stated purpose is to organize his or her coworkers to join together to protest working conditions or vote in a union.

2) the employee is using its own social media site or page to complain about wages, working conditions, or management and he or she is explicitly asking other employees for their opinions and support and/or other employees are giving their opinion and support about the working conditions at that company.

3) the employee is using social media to whistle-blow the employer’s illegal activity.

Yellow Light

SLOW DOWN employer. This is the instance when an employee is using social media in a way that may undermine or threaten the employer, but the employer should proceed with caution, and hopefully seek legal advice, before it makes a decision to discipline or terminate this employee for this social media use. Yellow Light employee actions exist when

1) the employee is “venting” about his/her own work, working conditions, wages or manager, but he/she is not seeking support from coworkers, yet other coworkers are commenting on it and/or “liking” the comment.

2) The employee is “griping” about work, working conditions and wages, in general, or management, but no one is commenting about it, although the employee’s friends or followers include his/her coworkers.

3) the employee is using social media to “out” the employer or managers for what the employee erroneously perceives as illegal or unethical activity.

4) the employee is name calling or bad-mouthing the company or its employees, but the comments are all true and not harassing or discriminatory

Green Light
INVESTIGATE, BUT DISCIPLINE ACCORDINGLY employer. Assuming the following activities are appropriately investigated and also prohibited by the company’s policies, if the employer determines that the employee is engaging in the following activities while using social media, the employer should discipline the employee for violating the company’s social media policy. Green Light employee actions exist when

1) the employee is posting violent threats, harassing and/or discriminatory comments about his coworkers, managers or customers and the comments unreasonably interfere with the targets ability to perform his/her job, especially when it is clear that these comments have nothing to do with working conditions.

2) the employee is posting comments that are so disloyal, reckless, or maliciously untrue about the company, and the company can prove the employee knew this when he/she posted it.

3) the employee is disclosing the company’s trade secrets and/or confidential information.

4) the employee is spending so much time on social media during work hours that it is interfering with the performance of his or her job (but remember to enforce this policy consistently.)

5) the employee is expressing a personal vendetta or gripe about his/her manager or coworkers, but it is not directed at coworkers and only his family and friends see it.

Remember, bad words or profanity are not determinative. It is about the motive behind the name-calling that the NLRB cares about. Also, how the company learned about the social media abuse will be taken into account. In other words, employers should not force employees into giving up their passwords to privacy protected groups or chatrooms. (See Pietrylo v. Hillstone Restaurant Group.) Also, do not pretend to be someone you are not to trick the employee into “friending” you or “accepting” you, especially if you are an attorney-investigator as this may be in violation of your code of professional conduct. Finally, using unlawful surveillance, interrogation or threats to get information about an employee’s social media postings violates California’s and other state statutes, which protect employees from this conduct.

Last, recognize that these “Traffic Signals” are merely my interpretation of the Survey and the Memorandum at this moment in time and the interpretation may change as the laws and rules surrounding social media use are in constant motion and continually change based on new cases and emerging law.

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