Legal Risks of Social Media and the Surety Bond Producer (Part II of II)

Social media can be used by both employers and employees for an enhanced employment experience. It can also be misused, creating legal liabilities for the employer. The intent of this article is to alert bond producers to the potential legal issues surrounding some common practices in the employment context.

Pre-employment screening

Online profiles are no longer limited to the youngest employees, and the use of social media is not a passing fad. It is a common practice now for employers to use social media websites to screen applicants or to perform pre-offer due diligence.

There are a variety of resources that can be used by employers to screen applicants, including LinkedIn®, MySpace™, and Facebook®. Users of these three sites create an individual profile that can include information about their work history, extracurricular activities, and contacts. Other sites such as Twitter™ and YouTube™ can also yield information on applicants that can be useful in making a decision to extend or withhold an offer of employment. For those employers who are unsure about using social media sites, a simple search using Google® or another search engine can also yield useful information on job applicants.

Social media profiles can provide information that is useful for an employer in the hiring process. While an employer should not rely solely on these sites to verify information on employment applications, they can be used to discredit applicants or to provide another view of the person behind the resume or online application. Online profiles can provide information on the applicant’s professional credentials, career objectives, maturity and judgment, abuse of drugs or alcohol, and current employment status.

Certain information that can be found in an applicant’s online profile cannot be used as the basis for an employment decision. This includes information on the applicant’s race, religion, national origin, marital status, disability, sexual orientation (some states and cities), and genetic information (limited states). While it is best to avoid obtaining this information, it is often prominently displayed on social networking profile pages.

A potential solution is to assign someone to review the social media sites who is not part of the employment decision-making process. Have that person filter out any information regarding membership in a protected class and only pass on information that may be considered in the hiring process. The most fundamental way to protect against discrimination claims for using information gleaned from social media sites in the employment decision process is consistency. Employers should keep records of information reviewed and used in any employment decision.

Online information is not always reliable. The first rule is to make sure that the person whose profile you are viewing is actually your job applicant. It is not unusual for people to have similar names or even the same name. Once you have confirmed the identity of the applicant, keep in mind that there is a possibility that not all of the information on the profile page is true. Profile information might have been deliberately falsified by the applicant or an acquaintance with access to the applicant’s login information.

Employers should also recognize that any site provides a limited picture of the individual. Remember the intended audience. For sites like LinkedIn, the intended audience is other professionals. But on Facebook and MySpace, profiles are often developed for close friends and family. Some people enjoy creating a new persona for their online life, one that has no relationship to who they are in real life.

Under current law, employers are unlikely to incur liability based on internet searches of job applicants. To further protect against liability, employers should be consistent in which applicants they search, recognize the limits of online searches, and be sure the information they find actually relates to their applicants.

Employee communications

Social media is changing communications between employers and employees and among co-workers. The employee newsletter is out and the company Facebook group is in. Employees of the twenty-first century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to pre-select and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today’s workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives. Whether by company emails, an intranet website, Facebook group, or other tools, social media has become critical to employer/employee communications.

Social media use policies

Just as employers adopted internet and computer use policies in the 1990s, now they are developing social media use policies. These policies can be part of the company’s electronic communications use policy or a stand-alone policy. There are lots of sample policies out there on the internet that employers can adopt and adapt for their own use. The key to an effective social media use policy is frequent adaptation to new technologies and programs and communication with employees.

The National Labor Relations Board issued a report in August 2011 on twelve cases that it had handled involving social media. (The report is available online at https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases.) The report reminds employers that, while the National Labor Relations Act (NLRA) was intended to protect unionized employees, it also applies to non-union employees in some situations. Any employment policy that prohibits employee communication about the terms and conditions of their employment is illegal. Social media use policies that penalize employees for their online communications with one another about the terms and conditions of their employment are prohibited under the NLRA.

Distractions and productivity

Employers worry about lost employee productivity due to the distractions of social media in the workplace. Exchanging messages with friends can be more interesting than their daily work assignments. Younger workers are used to multitasking. They made their way through high school and college with laptops, IPods, and cell phones and can write a paper, text a friend, watch television, and download music simultaneously. They want their work lives to function the same way their personal lives do, with constant stimulation and communication. This can present a supervision challenge to management.

Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).

Monitoring

Employers might be tempted to monitor their employees’ online conduct while at work. However, any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees’ postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.

In 2010 the U.S. Supreme Court unanimously held that a public employer’s review of an employee’s text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, 130 S. Ct. 2619 (2010). In Quon, a sheriff’s department issued pagers to its employees and authorized a set number of text messages per month. Employees were not prohibited from using the pager to send and receive personal text messages. Quon had an excessive number of text messages, and the employer asked its service provider for copies of the text messages from his pager, many of which were between Quon and his wife and girlfriend. Quon claimed that his privacy had been violated. The Supreme Court held that the employer had a right to see text messages sent and received on the employer’s pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.

Employee Misconduct

Employers, including bond producers, have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information and may lead to the unauthorized disclosure of confidential information. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.

Social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. Those employees who want to harass their co-workers will find ways to do it. Social media tools merely make it easier for them to do so.

The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer’s response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company spokesperson.

The employer’s social media use policy should provide for discipline for abuse of the policy.

Employer responses

Employers can take a number of measures to attempt to minimize the various problems that can arise from the use or misuse of social media. As a first step, employers can remind their employees that they have no expectation of privacy when using the employer’s electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers can review and update their internet use policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.
Employer social media policies should prohibit:

• Disclosure of confidential employer or customer information
• Using the employer’s trademarks
• Infringing the intellectual property rights of others
• Making statements adverse to the employer’s business interests or reputation
• Criticism of customers or business partners
• Statements supporting competitors
• Obscenity

Off-duty conduct

Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions (including disciplinary measures) on the legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.

Social media non-compete

Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting these accounts up with one employee as the face of the company. What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?

To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content, and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete. They are difficult, if not impossible, to enforce; but they clearly define the intent of the parties if the employer sees litigation or alternative dispute resolution as a necessary step to protect its brand or marketing position.

Conclusion

The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different from the past, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the twenty-first century.

The author of this article is Eileen Morgan Johnson, Esq., a Partner in the Falls Church, Virginia office of Whiteford, Taylor & Preston, LLP. She can be reached at emjohnson@wtplaw.com.

This article is provided to NASBP members, affiliates, and associates solely for educational and informational purposes. It is not to be considered the rendering of legal advice in specific cases or to create a lawyer-client relationship. Readers are responsible for obtaining legal advice from their own counsels, and should not act upon any information contained in this article without such advice.