Beware of Social Media Spying As New Laws Take Effect
It’s true that HR managers are turning more and more to new technology to help them do their job, and that many HR positions today require some aptitude in the use of social media. HR managers are looking to social media tools to expand recruitment efforts, improve employee engagement and highlight branding.
There is, however, such a thing as being too-involved in your employees’ online lives.
As of January 1, 2014, 12 states now have laws in place that restrict employers’ access to their workers’ personal social media accounts. The full list of states with social media-related legislation is available here from the National Conference of State Legislature.
Suspect your employee is badmouthing the company to his or her private online network? Tough luck.
Take Oregon’s law, for example. The new law states that it is unlawful for an employer to require that employees, or applicants for employment, disclose their social media user names and passwords or add you, the employer, to their list of contacts on a social media website. And, with the exception of investigations into illegal activities, employees can’t be required to access a personal social media account in the presence of the employer in a manner that enables the employer to view the contents of the personal social media account that are visible only when the personal account is accessed by the account holder’s user name and password.
Moreover, the Oregon law states that “if an employer inadvertently receives the user name and password … through the use of an electronic device or program that monitors usage of the employer’s network … the employer is not liable for having the information but may not use the information to access the personal social media account of the employee.”
There are exceptions to these rules. This doesn’t apply to company accounts to which the employee is assigned to post on the behalf of the employer. If the information is publicly available, it’s free game.
“Most of the new laws provide the employer with the right to ask for access to personal social media accounts if they have a ‘reasonable belief’ that wrongdoing has occurred,” says Daniel Prywes, a partner in the Washington, D.C., office of litigation firm Bryan Cave. In addition, he notes, “Employers generally have great freedom to look at emails on company-provided computers.”
But what can you do to stop an employee from discussing your company with one thousand of his closest online friends?
First and foremost, it’s important to put a clear social media policy in place. While in the past companies opted for broad social media policies, today many lawyers are advising tightening policies to highlight specific statements that should not be made (i.e., do not disclose trade secrets).
“Given recent National Labor Relations Board (NLRB) opinions, more focused policies are likely to safer from a legal perspective,” Prywes agrees. However, he stresses, “Policies should not attempt to restrict employees from off-work email communications critical of management or addressing terms and conditions of employment.”
Furthermore, the Society for Human Resource Managers further recommends putting any policy in the form of a guideline, not an absolute rule. A rule may possibly violate the National Labor Relations Act, which says employees have the right to engage in “protected concerted activity.” When creating your policy, keep in mind that the NLRB outlines areas of caution with regard to over-monitoring of social media. The board seeks to protect the rights of employees to act together to address conditions at work, which includes certain work-related conversations conducted on social media.
And in the case of potential hires, you might do better to leave social media altogether out of your factors to consider. After all, last month Workplace HR noted that new research indicates that visiting the Facebook page of potential new hires can do more harm than good when it comes to selecting new recruits.