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The Social Work-Net: The ins and outs of social media vetting practices

By Randal Cole | Dawda, Mann, Mulcahy & Sadler, PLC | 9/5/2018
 

The impact and influence of social media has merged into every corner of both our personal and professional lives, and lines between the two have begun to blur. Employees and businesses alike are using social channels for professional purposes (sometimes to great advantage), and decision-makers have, perhaps inevitably, been drawn to social media’s potential as a way to learn more about current and potential employees. 

However, using social media as a mechanism for more comprehensive evaluation and assessment of employees and applicants is a fairly new phenomenon, and it presents some tricky ethical issues and complex legal considerations. With that in mind, employers need to proceed with caution when it comes to social media vetting practices, and should make sure that they take the time to educate themselves about current best practices. 

In this complex and still-emerging area of the law, limiting exposure to potential liability requires a commitment to understanding the still-emerging regulatory climate around these issues. Understanding how and where to draw the line will ensure that they are able to get the best possible information from this unique new resource without infringing on an individual’s privacy or exposing their organization to legal difficulty.
 
Critical questions

Understanding how to legally and effectively use social media channels for employee and applicant evaluation raises fundamental questions about who truly “owns” personal information on a public social media platform. Business leaders and decision-makers need to be able to answer questions like: Who is permitted to access this information, and what can you do based on information gathered through a social media review? Is all material posted on social media fair game for employers? Do employers have the right to monitor Internet usage on company-owned computers? Does the answer to that question change whether or not the employee is going online through company network or servers? And do employees have any privacy when it comes to personal devices and social media accounts? 

While the answers to some of these questions can vary depending on specific state laws governing social media privacy, there are certain commonalities and basic best practices that all employers can adhere to:

Policies and personnel

The first and perhaps most important question employers need to answer is who: who should be tasked with reviewing social media activity, and who should be the subject of those reviews? You generally want to assign an experienced HR professional to conduct these reviews (for reasons involving both consistency and accountability). The Fair Credit Reporting Act states that this is something that cannot be “outsourced.” When it comes to review subjects, there are just two answers to the question of who should be reviewed: everyone or no one. One of the quickest ways to find yourself in the legal weeds (potentially being forced to respond to a complaint filed with the U.S. Equal Employment Opportunity Commission) is to do something that suggests targeted or discriminatory behavior. Consistent application of company social media review policy should be reinforced by documentation: specifically, a clear and comprehensive written social media review policy.

Insights and illegalities

As a general rule, questions about social media content should stay general and high level. Avoid forbidden or sensitive topics, however, asking about general perspectives and platform preferences is permitted. Asking for detailed information like a password, for example, isn’t just unwise, it’s illegal (violating the Federal Stored Communications Act). When conducting reviews and looking for information, save yourself time (and potential liability) by limiting your search to obvious red flags. Those include indications of unsafe or illegal activity, or any content that is potentially hurtful, inflammatory, or offensive regarding genders, ethnicities and cultural or religious traditions. Be on the lookout for signs of conflict or tension with other companies or institutions, and be wary of problematic language or behaviors that would put the applicant/employee in conflict with fellow employees or company policies. 

Platforms and priorities

Keep in mind that virtually all social media accounts in the public domain are available for employer review. For the sake of efficiency, it makes sense to start (and possibly finish) with the biggest and most popular platforms (Facebook, Twitter, and Instagram). One critical point for employers to remember is that rules governing access can and do differ significantly for employees and non-employees. The Electronic Communications Privacy Act stipulates that employees have no legal expectation of privacy—at least not to any information they post while using company-owned devices. While employers face more review limitations for information posted using personal devices, there can be some regulatory gray area regarding social media content posted on private devices, but while using the company network.

Finally, because this is an area of technology and the law where standards and statutes are changing with remarkable speed, employers should seek the advice of trusted and employment law attorneys. Experienced legal counsel can help employers who wish to utilize social media as a recruiting or evaluation tool to do so in a manner that is fully compliant with current legal regulations.

Randal Cole is a member of Dawda, Mann, Mulcahy & Sadler, PLC, where he concentrates his legal practice in the area of labor and employment law for automotive, automotive dealership banking and financial services, construction, manufacturing and health care industries. Contact Randal at rcole@dmms.com.

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