A recent survey conducted by CareerBuilder unearthed some interesting statistics around the ways in which companies keep tabs on employees’ social media use. 70% use social media and networking sites to research job candidates to supplement a future employees background check, but it doesn’t stop there. Almost half (48%) monitor current employees’ activity, and a third have either reprimanded or fired an employee on the basis of what they’ve found. Because you can, does that mean you should? It gets complicated.
Social Media and the Law
There’s very little federal case law surrounding social media and practices like asking employees for their social media profiles — or even their login credentials. That leaves it up to state law, and as of this writing, North Carolina has no laws restricting your ability to do these things. Regarding ongoing monitoring of current employees, the law is a bit more clear-cut; social media use during work time, or on employers’ assets and systems, is fair game. Here, the reasonable expectation of privacy does not apply.
But what about the First Amendment?
Good — and common — question. What people tend to forget is that the First Amendment covers what the government may or may not do in restricting free speech. Courts at various levels have consistently held that private entities, like employers, have considerably more leeway in policing, or even proscribing, certain forms of speech. But for reasons we’re about to explore, that doesn’t mean that either extreme — unfettered expression, or unfettered monitoring — is necessarily a good idea.
Further Steps to Protect Your Business
Of course, the rationale behind social media monitoring usually comes down to reputation management, and protecting what you’ve worked hard to create. In light of that, we’d be remiss if we didn’t point out some of the potential pitfalls in social media monitoring, and steps your business should take to protect itself.
Create a Social Media Policy
What are the infractions, and what are the consequences? You’ll need to think through a wide variety of scenarios here, from complaints about a coworker microwaving fish for lunch, to employees posting selfies from Carowinds after calling in sick, or posting comments denigrating customers or other individuals, especially on the basis of race, class, gender, or sexual orientation.
That policy should be put in writing, then disclosed as part of new hire paperwork, and on an ongoing basis as the policy is refined and updated. If you’re going to audit an applicant’s social media, say so. If you’re going to be spot-checking a current employee’s postings as a matter of policy, be equally transparent about that. Fail to do so and you stand to damage trust with your employees.
Enforce Your Policy Fairly and Uniformly
Having a policy as it pertains to future, present, or — in sensitive cases where NDAs are involved — even future employees isn’t enough. It should be transparent, and it needs to be kept current and communicated clearly. Equally to the point, however, it needs to be enforced fully, fairly, and uniformly. It’s not exactly a trade secret that we live in a litigious society, and any hint of favoritism will be swiftly and fully exploited.
It also helps both sides to understand that context matters. If, for instance, your employees are grousing about a direct report amongst themselves, the law views that differently than a sole employee airing her department’s dirty laundry in a heated Facebook post. And as we’ve discussed, what takes place on company time, or with company equipment, falls under a different set of rules than what someone does on their downtime (as long as the activities in question are legal), so however squeamish you may feel about someone’s alcohol consumption at home, it’s not necessarily a firing offense; if, on the other hand, the same employee tweets about narrowly dodging a DUI checkpoint on the way home from the bar… well, you get the picture.
Monitor the Situation
Don’t just monitor employees’ social media presence. It’s just as important to keep a sharp eye on employment law, privacy law, and the multifaceted (and often complex) ways in which they overlap. Whether it’s pending legislation or legal action taken against an employer — even when it takes place in another state or an unrelated industry — this kind of diligence can help you add another layer of protection, and to change with the times.
So is it worth it? One employment attorney, speaking to the SHRM, put it this way: “It is entirely case by case. A company has to decide: What’s its reach? What’s the damage? There is no black-and-white answer.” That’s especially true now, when the lines between work and personal time blur, and when we often expect our employees to be brand ambassadors whether or not they’re on the clock. So while you may have the tools to do so, it’s best to tread thoughtfully. If you’re considering auditing a potential hire’s social media alongside employee background check services, or your existing employees’ as part of a program of rolling checks, consult with Barefoot Professional Investigations.