Molly Kelley, Xenium Senior HR Business Partner, also contributed to this post.

Technology really does some fantastic things for us. However, some employees and employers are learning the painful lesson that the same immediacy we all appreciate about emails and the ability to see our pictures posted online in seconds has a darker side. The technological interconnectedness we so enjoy also speeds up our ability to release a statement to the world without thoughtfully considering it. In years past, press releases were carefully crafted and edited before going public. We’ve lost some of that care and craft. The ability to live tweet life can be incredibly damaging to an employee’s career and to their company and clients. Often these social-media-mishap stories are the result of a single instance, a one-liner completely out of context and taken as a representation of that individual as a whole. With the viral and supersonic nature of the Internet, once something is out there online, it’s impossible to take back entirely.
The quick reaction, the message we all hear so often, is to simply be careful on social media. But how possible is it to be conscious of the implications of every Facebook post, every Tweet, every photo on Instagram? To hesitate and self-edit every time, when we are sharing more and more about our lives online every day? This advice is more of a quick, Band-Aid fix to a complex problem.
So what’s the solution, for employers and employees alike? Let’s explore some relevant litigation from the past year centering around how employers approach and evaluate social media accounts of job applicants appropriately and legally, and how to move beyond the traditional compliance-oriented response to social media and other workplace issues.
 

Employee Grievances on Social Media: What’s Legally Protected?

In September 2014, the National Labor Relations Board (NLRB) ruled that “liking” a post on Facebook may be considered a protected activity under Section 7 of the NLRA.
The online conversation in the case was regarding tax liabilities and complaints about an employer’s incorrect tax withholding calculations. The conversation specifically identified the employer, along with the dollar amounts owed back. The individuals who commented on the Facebook post, along with the original poster, clearly stated their frustrations on the topic, while one coworker simply pressed the “like” button on the initial post itself.
Two questions stood before the NLRB: was this conversation protected under Section 7 of the NLRA, and what about the employee who “liked” the post? Is the approval of a statement exerted via a single mouse-click a protected act?
The NLRB found that the conversation was protected because it consisted of a number of current employees who were discussing a condition of employment. The reason behind this outcome lies in Section 7 of the NLRA, which holds that some conversations are protected if they are regarding certain topics including wages, compensation, and the safety of working conditions. Visit the NLRB’s website to read the specific wording of this section.
In this case, the NLRB decided that the Facebook “like” was protected as well, as it indicated that the individual “expressed his support for the others who were sharing their concerns and constituted participation in the discussion that was sufficiently meaningful as to rise to the level of protected, concerted activity,” as stated in the court’s decision.
The internet and the nature of online communication are constantly changing, and so must laws and protections of those conversations. Xenium Senior HR Business Partner Molly Kelley says, “What I always say in my trainings and will continue to say is that there are at least two things that I always call an attorney on: ADA concerns and social media. Things in the social media world and what is and is not protected changes so quickly, and the definition of what is protected is pretty flexible. You want to loop in the experts to interpret what the courts are saying in light of your specific situation, particularly if you might be moving to discipline an employee in relation to something that occurred via social media.”
 

The Hiring Process

When hiring for a social media marketing, public relations, or other similar position, assessing a candidate’s social media presence is a crucial step in the applicant screening process. A recent vote in Oregon and Washington determined that an employer cannot require an applicant or employee to turn over their Facebook password. Beyond that, even looking at an applicant’s Facebook, Myspace, or other profile for pre-hire purposes is technically a reference check. If it is necessary for you to view a person’s personal content not presented to you within their resume or at an interview, it is recommended that you inform them and ask their permission upfront in the form of a release. This recommendation is based off the similar process of following the Fair Credit Reporting Act when performing a background check on an applicant.
linkedin-2LinkedIn, it should be noticed, is often viewed a bit differently, but the issue still remains: if you find something you weren’t looking for, how do you disprove that you didn’t use it as a reason not to hire someone? Having a signed release or a built-out process for these types of screenings is essential in protecting hiring managers against this kind of potential fallout.
One best practice approach to this, while avoiding unlawful employment practices and respecting your candidates’ privacy, would be to involve someone who is completely outside the hiring process. This unbiased, third party individual would need to be someone who would NOT be this person’s manager, but whose sole involvement in the process is researching the candidates and creating a full report of their findings. For a social media applicant, the assessor could report how frequently this person posts on their own social media accounts, what kind of content they produce, the tone and tenor of their posts, their number of Twitter followers, and other statistics. For a graphic designer, this person could report on this individual’s portfolio and the presentation of the content on their personal website or blog. The goal is to ensure we are omitting anything personal they might see posted, such as disabilities, sexual orientation, racial and ethnic profiles, and other protected classes that could be perceived by a candidate to be factors leading to discrimination on the part of a hiring manager.
 

Social Media Policies

When it comes to your current employees, particularly the younger generation who typically have a strong online presence and are very connected to coworkers on social media, it’s important to have a social media policy in place, as well as policies regarding harassment.
Some social media issues are straightforward cases. If a breach of company or client confidentiality, use of racial or other inflammatory epithets, stalking, threats, or other violations occur, the path forward is clear, as employers have an obligation to respond and ensure they are creating a safe and respectful work environment. The issues that arise more frequently are less extreme. If an employee makes a personal statement that upsets someone, the statement doesn’t quite fit into the category of harassment, and it isn’t in their job description to maintain a professional demeanor in their personal social media presence, conflict management or mediation may be the optimal path forward.
 

Focus on Culture Instead

instagram-photoThe traditional approach to social media, attributed to the old school finger-wagging HR professional, is to focus on the compliance issues, write strict policies, and inevitably create an attitude of fear and danger surrounding social media use. Ultimately, it isn’t helpful to have this “worst case scenario” outlook and put all authoritative energy into shutting down people personally by silencing any comments seen as unhelpful. A more preventative, positive outlook is to focus on company culture. Take a look around at your company and your people—what are you fostering? If yours is a company where transparency and support are valued and readily made available, where issues are addressed quickly at a high level in a way that employees see and understand, you have no need to be afraid of social media. Your team will become your strongest advocates for themselves, your customers, and the company itself.
The accelerated process of sharing tidbits from our lives with the world can work to your advantage if your employees love coming to work—it’s likely that they will want to share inspiring stories about their work life online without breaking any confidentiality.
Supporting and uplifting your employees may not only allow you to avoid sticky issues, but could also inspire statements such as, I love my company and I work alongside some incredible people. We’re recruiting, and you should check out this posting if you’re job searching! The market is shifting in Portland, and has become an employee’s market with a wealth of open positions and not enough candidates to fill them. Your people are your best recruiting asset, as your employees have many connections and know who would be a good fit at your company versus who wouldn’t be. They will help to organically cultivate a community presence for your company if they are proud and excited about their workplace. If the reverse occurs and a worker slams their workplace, the damage for such a moment was done long before the outburst occurred, and the fallout will be felt long after.
Encourage positivity, don’t just do damage control, and definitely don’t shut down social media as a form of employee communication.
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