Social Media Policies: Are You Running Afoul?

Social media can mean many things to many people, but for employers, it can be an invaluable tool… and a source of great frustration. There are more than 480 million daily users of Facebook and billions of tweets a week. With such large numbers, it is not surprising that a growing number of employers use these platforms to grow their brand, recruit new employees, and keep tabs on the competition. Unfortunately, employers are also discovering the downside to social media and the difficulties managing not only their reputation, but also employee actions on the job and online, without violating federal laws and regulations.


A Recruiting Tool
More than eight in ten Fortune 100 companies use LinkedIn to attract and recruit talent. When spread across all companies, more than 55% are using social media in their recruiting process.

Targeted recruiting, along with identifying passive candidates, is made easier with social media.  Companies also promote their cutting edge brands, and increase awareness of their organizations by developing marketing strategies geared toward new employees, using all forms of social media. Employers also increase the quality of their new employees through social media.

It might seem simple to just log on and look up a potential employee on Facebook, but there are risks that must be considered. While looking for information on the candidate, a hiring manager may come across information or photos that are not job-related. When this information is used in the hiring decision, there is a greater risk of employment discrimination. The Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) prohibit discrimination in the hiring process. The problem with social media is that this protected information can be readily available to hiring managers.

To protect themselves, some companies will use outside social media data brokers to compile and report data on candidates, removing potentially discriminatory information from the report before it gets to the employer. Another law comes into play at this point: the Fair Credit Reporting Act. These data brokers are covered under the FCRA, much like a credit reporting agencies or a third-party company performing criminal background checks. Last year, Spokeo, a data broker, was fined $800,000 by the Federal Trade Commission for failing to protect consumers (candidates for employment) as required under the FCRA. The employer also has a responsibility to inform and gain consent from the candidate prior to requesting such a report.


A Marketing Tool

Social media has also become a vital resource for companies in building brand recognition with their customers, and gaining a greater online presence. Company Twitter accounts, LinkedIn profiles, and Facebook pages have exploded. But with this growth, companies have also found that a lack of planning on the front-end can cause huge headaches when an employee leaves the company, or posts something under the company name without authorization.

Planning must begin prior to creating a social media account. Factors to consider when creating a company sponsored social media account include:

  • Who owns the account—the company or the individual who created it?
  • How is the password maintained and who has access to it?
  • Who is authorized to post under the account name?
  • Who has access to the list of “followers,” “likes,” and “connections?”

Jumping into the social media realm without thinking through these issues can create a monumental public relations nightmare. Take the company PhoneDog, for example. A Twitter account was created by an employee, who used his name and the name of the company in the Twitter handle. This employee did a great job of building a following online for the company, and grew his number of followers to over 17,000! (Don’t we all wish we could do that?)

As sometimes happens, this employee left the company, and in the process, took his Twitter account and 17,000 followers with him. The company demanded the account password and access to the account, but the employee refused. PhoneDog then sued the former employee claiming:

  • Misappropriation of trade secrets (taking the password)
  • Conversion (another term for theft—claiming the list of 17,000 followers was a customer list)
  • Tortious interference with prospective advantage (intentionally damaging the company).

The problem was that when the account was created, there was no policy about who owned the account, who had access, and what happens to the account if the employee leaves. The employee who managed the account claimed the account was a personal account and the company had no right to the account, the password, or the list of followers.

After sitting in the courts for a couple years, it was finally settled out of court for an undisclosed sum, but not until after a great deal of money was spent by both sides in attorneys’ fees. By the way, the employee’s list of followers has since grown to over 23,000 (under a new Twitter handle).


A Social Interaction Tool

According to a report last year by Proskauer Rose LLP, 52% of employers allow their employees to access social media sites (for non-business use) while at work. However, reports from the Society for Human Resource Management indicate that less than half of employers have a formal social media policy.

Without clear direction and guidelines, employers increasingly find themselves battling not only employees, but also federal agencies such as the National Labor Relations Board (NLRB). Employers can limit their employees’ access to social media when using company owned equipment. However, when they do allow it, and when an employee accesses social media on a personal device and off the clock, restricting what an employee can and can’t say is difficult at best.

The NLRB protects employees’ rights under the National Labor Relations Act, particularly in Section 7. Among other things, this section allows employees to discuss among themselves the working conditions at a company, also known as Protected Concerted Activities.

When an employer reads that two employees are talking about their salaries, or the hours they have to work, on a Facebook post, and then takes disciplinary action against those employees, he or she has probably violated these Section 7 Rights. The NLRB has taken a harder stance against employers when it comes to social media and the policies employers create.


Protecting the Company

It is becoming more difficult for employers to protect their own brand and image, but there are steps companies can take to reduce the risks.

First is to establish a social media plan. This plan should involve more than just the marketing department, but also human resources, and legal counsel. The reach of social media has an impact much greater than simple Facebook posts and promoting new products.

Second, create a social media policy. This policy should discuss employer monitoring of accounts, what is confidential, the privacy of others, ownership of the online identities, rules and guidelines about using the company sponsored accounts, how to report violations, and a disclaimer about the employees’ rights. This policy won’t mitigate the intent of Section 7 of the NLRA, but it can be effective if developed the right way and uses the right language. Of course, these policies should be reviewed by a professional, and should be updated as the laws and regulations become more clearly defined.

Social media has become a strategic and integral part of business. By developing a plan and clearly outlining and communicating a social media policy, employers can minimize their risks, and instead focus on the benefits of their new online presence.


Chad V. Sorenson, SPHR, is President of Adaptive HR Solutions and a Co-Founder of Talent Development Inc.  He works with organization to grow leaders and develop their workforce.  Chad is also President Elect of SHRM Jacksonville and can be reached at

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