Employment Practices and Social Media

The proliferation of social media has transformed the way people communicate with each other. Platforms like Facebook, LinkedIn, Twitter and Google+ allow people to post whatever strikes their fancy, sharing information with their network and by extension the whole world instantaneously. Design firms are increasingly using social media platforms as part of their business practices: checking social media to screen new employees and using social media tools as an extension of their marketing efforts to “tell their story” to existing and new clients. Social media is a fact of life and firms need to develop thoughtful policies regarding social media for their staff that are clear and in compliance with the laws that are in place.

Social Media and Employee Recruitment

Employers are increasingly checking social media websites to run background checks on prospective employees. It is not uncommon for employers to routinely “Google” applicants and check social media sites for information on prospective employees. The proliferation of social media has transformed the way people communicate with each other.

It is generally recognized that applicants have no expectation of privacy with respect to information in the public domain; however employers have to be careful that they do not use that information to make decisions that are against the law. For example, federal non-discrimination laws prohibit employers from making employment decisions based on protected class information such as age, disability, national origin, race/color or religion. State laws may have additional protected classes. It is therefore important that staff that runs these background checks use this information fairly and make sure that they are not using protected class information to make employment decisions.

Firms should make sure that their policies are in compliance with the laws of their particular state.

In response to reports of job applicants being asked to disclose usernames and  passwords to social media sites so that the prospective employer can review a prospective employee’s private pages, several  state legislatures have drafted bills banning these practices. Maryland and Illinois have already passed bills prohibiting employers from asking employees to disclose usernames and passwords. Firms should make sure that their policies are in compliance with the laws of their particular state; the general societal expectation is that employers should not seek access to information that would not be available without the prospective employee granting access to their account passwords.

Employee Use of Social Media

Generally employees have no expectation of privacy with respect to information they publish on social media sites. Employers who regularly monitor information on social media sites about the firm and may come across information posted by employees about the firm that is less than flattering.   Section 7 of the National Labor Relations Act (“NLRA”) grants all employees, whether or not they are union members, the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection”.  The National Labor Relations Board has recently issued guidance stating that employer policies in the use of social media by employees should not be so sweeping that they prohibit the kinds of activity protected by federal laws, such as the discussion of wages or working conditions among employees.

Employer policies . . . should not be so sweeping that they prohibit the kinds of activity protected by federal laws.

Disciplining employees who post negative comments about the firm should be done with extreme caution because such comments could be deemed to be a concerted activity conducted for collective bargaining if the communication is between employees. At the same time, firms should make sure that their social media policy does not violate the NLRA by restricting the right of current employees to discuss their wages and other terms and condition of employment. The other issue that firms may face is an employee using social media to discriminate and/or harass an employee. Regardless of the media it takes place in; any reports of harassment by an employee towards another employee have to be dealt with in accordance with your policy on discrimination and harassment.

Firm Use of Social Media for Marketing Purposes

Recognizing that social media is one way for firms to tell their story to existing and potential clients, firms have started to embrace social media platforms, posting material to Facebook, LinkedIn, Twitter and Google+. Employees who in their scope of their employment post content to social media platforms need to have clear guidelines on the tone and content of the materials they can post. Because of confidentiality obligations, it is prudent to check your professional service agreement and the client before posting project specific information. Firms should proceed on the assumption that anything posted on a social media platform is available to the public.

Update Firm Policies

It is likely that because of the explosion of social media in the last few years, you have not assessed how you are currently using social media in your business practices. Firms should take stock of their current practices in regards to use of social media platforms and develop guidelines that reflect both their business practices and legal obligations.

Victor and CNA work with the AIA Trust to offer AIA members quality risk management coverage through the AIA Trust Professional Liability, Business Owners, and Cyber Liability Insurance Programs to address the challenges that architects face today and in the future. Detailed information about both these programs may be found on the AIA Trust website, www.TheAIATrust.com.

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