Right now, the intersection of social media and the law looks a lot like a street corner where the traffic signal has just stopped working: Things are moving much too fast and you know there’s bound to be an accident or two. One of the few things we can say with any certainty is that the state of the law of social media will be vastly different 12 months from now.
With millions of people continuing to share online gigabytes-worth of what was once relatively private information, no business can be completely safe from the unintended and often harmful consequences of all that information being released into the wild.
Today’s CIO is frequently seen as the first and last line of defense against those consequences. You are assumed to be experts on how to deal with issues that spring from the use of social networking because, well, “it’s one of those computer things.”
So, we’ve prepared a short list of just a few of the types of legal issues that accompany the proliferation of social networking.
Implementing a Social Media Policy
Many CIOs long ago shut the Facebook nation safely outside the gates of their corporate firewalls — if for no other reason than to increase productivity. However, with the proliferation of mobility, such a lock-out is now unlikely to stop any of your workers from accessing the sites via their wireless devices without your knowledge.
Your company should implement a social media policy that sets ground rules about what kind of information employees are not permitted to publicly post via social media. In addition, your organization should obtain an employee’s acknowledgment, in writing, of the policy.
That leads to the million-dollar question: What kinds of social media activity can be prohibited? This is one of the areas where the state of the law is most in flux. Employers who wrongfully terminate an employee over an Internet post can run afoul of state off-duty conduct laws. There are also federal statutes, such as anti-retaliation or discrimination under Title VII, protected “concerted activity” under the National Labor Relations Act (which applies even in non-union workplaces), and the whistleblower provisions of the Sarbanes-Oxley Act.
Here are two informal ways of determining whether an employee should be fired or disciplined for social media activities:
- If your company has a social media policy prohibiting certain postings, and the employee’s postings nonetheless cast the company, its management or its customers in a negative light.
- If the company’s trade secrets and strategy are being discussed anywhere outside the secure confines of your enterprise.
Social Media’s Impact on Hiring Decisions
Some of use may have used social media to find out more about a prospective job candidate. However, it’s important to use social media judiciously in making hiring decisions. Be aware that when conducting your due diligence on a potential hire via Internet searches and social media sites, information that wouldn’t be fair game in an interview (age, medical conditions, race, religion, sexual orientation, etc.), is often plainly available about the candidate on the Internet. Such information can be the basis for a discrimination claim if that candidate isn’t offered a job.
An unscrupulous job seeker may even intentionally put this information on the Internet knowing that a company which refuses to hire him or her will have difficulty “proving the negative” — that it never saw the information and therefore didn’t use it as a basis for its hiring decision.
