Social media has revolutionized the way employers investigate prospective employees and manage current employees. However, employers who reap the benefits of social media also expose themselves to a variety of legal consequences. According to hr.blr.com’s article, Create an Effective Social Media Policy ASAP, “One of the greatest dangers of misusing such media is a data breach—of personal health or other sensitive information, or of the employer’s proprietary information.” Employers must protect themselves from liability by creating and enforcing a comprehensive social media policy. Below are some practical guidelines published in hr.blr.com’s article and provided by credit rater Experian and the law firm Sheppard Mullin Richter & Hampton.

• On the team that creates the policy, include a couple of the employees who are enthusiastic users of social media. They may know more about the advantages, and the pitfalls, than your legal and HR people do.
• Don’t try to prohibit employees from complaining about conditions at work or their compensation or benefits. Postings like that may make top management unhappy, but such employee activities are protected conduct, regardless of the medium used.
• Emphasize your organizational procedures for making such complaints internally, and urge that they be used.
• Stress that postings that reflect a lack of professionalism or ethics—or worse, that imply criminal misconduct—can do irreparable damage to the organization’s reputation.
• Clearly communicate in the policy what the organization’s trade secrets—customer lists, patented processes, and the like—are. If you don’t identify them as such, employees may not know they’re proprietary information.
• Update your e-discovery policies and procedures to ensure they include social media activity.
• Consider installing content filtering to restrict or limit access to social media websites.
• Ensure that anti-virus and anti-malware controls are updated daily.
• Train all employees on the policy, and discipline anyone who violates it.
• Create a policy review schedule so that the policy will be revised to accommodate new social network or technology developments. They are sure to come down the pike, as the media seem to change every day.

To learn more about creating a social media policy, please read my following articles:

• Social(Media)izing at Work
• Companies Need Social Media Policies
• Social Media Effects Protected Activity
• Teachers’ Union Claims School District Social Media Policy Violates First Amendment
• Businesses Benefit From Social Media Policies
• Employers Beware: Social Media Ignorance Can Harm You
• AMA’s New Social Media Policy Falls Short
• EMT Fired Over Facebook Post
• Social Media Workplace Pitfalls

While social media is a valuable resource for recruiters to gather information about prospective employees, failure to establish and consistently apply appropriate policies can have serious legal implications. In her article, What Happens in Vegas Doesn’t Stay in Vegas: Best Practices For Using Social Media in The Recruiting Process, Janelle Milodragovich provides eight valuable guidelines for those who use social media during the hiring process. They are: (1) process all applicants consistently; (2) identify a designated searcher or searchers — not the hiring manager; (3) avoid revealing potential employees’ protected information (i.e. age, race, religion, disability, genetic information, and political association) to the hiring manager; (4) limit the scope of the social media searches to publicly available, relevant, work-related information and never allow anyone to “friend” an applicant in order to see private profile information; (5) provide notice of social media searches to all prospective employees either on the employment application or in a separate disclosure; (6) consistently document the results of social media search, removing any protected information that was inadvertently obtained; (7) document all decisions to reject an applicant based on social media search results; and (8) communicate social media policies to hiring managers, advising them not to perform their own social media searches.

To learn more about using social media in the hiring process, please read my articles:

• EMT Facebook Fiasco Settled
• Significant 2010 Social Media Law Cases
• Employers Beware: Social Media Ignorance Can Harm You
• Social Media Workplace Pitfalls
• Social Media Effects Protected Activity

Although employers have started to understand the value of the information that social media can provide, many employers remain unaware of how and when they can use social media to hire, fire or discipline employees. In the article, The Social Media Revolution: Recent Developments and Guidelines For Employers to Consider, Jon Stoler, Jim Hays and Jonathan Sokolowski review two recent cases in which an employer’s use of social media was challenged. Furthermore, they provide employers with practical advice to help them take advantage of social media while maintaining the rights of their employees.

In the first case, the National Labor Relations Board (NLRB) issued a complaint alleging that American Medical Response of Connecticut, Inc.’s (AMR) termination of Dawnmarie Souza for posting disparaging remarks about her supervisor on Facebook interfered with her right, under the National Labor Relations Act (NLRA), to engage in “concerted protected activity.” Additionally, the NLRB alleged AMR’s Social Media policy which prohibits employees from making disparaging, discriminating or defamatory comments about AMR or its supervisors, violates the NLRA. An administrative law judge is scheduled to begin hearing the case on January 25.

In the second case Pietrylo v. Hillstone Restaurant Group a jury found that the employer unlawfully terminated two employees who maintained a password-protected online discussion group on MySpace. Although an employee/member of the discussion group originally showed a manager some of the discussions voluntarily, another manager later asked the same person for the group’s password so that he could review postings. During the trial the employee testified that she felt compelled to give the manager her password out of fear of retaliation. As a result, the employer was found to have violated the Stored Communications Act and the New Jersey Wiretapping and Electronic Surveillance Control Act (NJWESCA), which makes “it an offense to intentionally access stored communications without authorization or in excess of authorization.” The jury awarded the plaintiffs both compensatory and punitive damages.

While employers must take advantage of the benefits social media provides, employers need to understand and stay current on this quickly evolving area of law. The following is a summary of the advice provided by Stoler, Hays and Sokolowski in their article:

• Remove all hiring decision-makers from performing or reviewing social media background checks to avoid making employment decisions based on race, religion, sex, age, and national origin, etc.

• Limit all social media discovery to publicly available user information to avoid violating the Stored Communications Act and similar state laws.

• Implement social media policies that notify employees of the following: that they have no expectation of privacy when using company computer systems, that permission must be granted to use company logos or express company views, and of the consequences of posting lawful but inappropriate comments or material about the employer or other employees online.

• Seek legal assistance when taking adverse employment actions based on information found on social media sites.

To learn more, please read Stoler, Hays and Sokolowski’s article. Also please see my other articles about workplace social media policies:

• EMT Fired Over Facebook Post
• Social Media Workplace Pitfalls
• Social Media Effects Protected Activity
• The Implications of Social Media on Restrictive Covenants

Recently the American Medical Association (AMA) released its policy on Professionalism in the Use of Social Media. Below quotes the “considerations” the AMA policy encourages physicians to weigh when maintaining a presence online.

(a) Physicians should be cognizant of standards of patient privacy and confidentiality that must be maintained in all environments, including online, and must refrain from posting identifiable patient information online.

(b) When using the Internet for social networking, physicians should use privacy settings to safeguard personal information and content to the extent possible, but should realize that privacy settings are not absolute and that once on the Internet, content is likely there permanently. Thus, physicians should routinely monitor their own Internet presence to ensure that the personal and professional information on their own sites and, to the extent possible, content posted about them by others, is accurate and appropriate.

(c) If they interact with patients on the Internet, physicians must maintain appropriate boundaries of the patient-physician relationship in accordance with professional ethical guidelines just, as they would in any other context.

(d) To maintain appropriate professional boundaries physicians should consider separating personal and professional content online.

(e) When physicians see content posted by colleagues that appears unprofessional they have a responsibility to bring that content to the attention of the individual, so that he or she can remove it and/or take other appropriate actions. If the behavior significantly violates professional norms and the individual does not take appropriate action to resolve the situation, the physician should report the matter to appropriate authorities.

(f) Physicians must recognize that actions online and content posted may negatively affect their reputations among patients and colleagues, may have consequences for their medical careers (particularly for physicians-in-training and medical students), and can undermine public trust in the medical profession.

While this is the AMA’s attempt to “[help] physicians to maintain a positive online presence and preserve the integrity of the patient-physician relationship,” the policy falls short of offering physicians any real guidance. Instead, the policy provides physicians with common sense “considerations” that are generic and overly broad. In his article, AMA Guidelines for Physicians in Social Media, Dr. Bertalan Meskó exposes what is lacking in the new AMA policy: “Clear recommendations about how to use Facebook privacy settings properly with videos or screenshots; what to do when a patient sends us a friendship request on Facebook or when a patient writes about an adverse drug event on our blogs. Case studies, clear examples, tutorials, presentations.” Guidance from the AMA regarding social media was already overdue, and it seems physicians will still have to wait for any practical assistance.

Although most of the AMA’s “considerations” are elementary, one consideration is unusual. Colin J. Zick, author of AMA Adopts Policy on “Professionalism in the Use of Social Media” calls (e) the “snitch rule.” According to (e) physicians have a duty to report unprofessional content. First the physician must report to the poster to give her an opportunity to take “appropriate action.” If “appropriate action” is not taken the physician must then report the user to the appropriate authorities. However, the AMA policy does not define unprofessional content or appropriate action, thereby leaving physicians with very little guidance as to the duty it created. In response to (e) GruntDoc, author of New AMA Policy Helps Guide Physicians’ Use of Social Media, writes, “Plenty of thoughtful people disagree with things I’ve written (and a few unthoughtful folks disagree with everything), but I’m not a fan of giving AMA blessing to harass.”

Now that using social networks and blogs to communicate has become commonplace, physicians have to learn how to deal with long-standing challenges on this new forum. Moreover, physicians must learn how to use social networking to better serve patients. Hopefully, the AMA will provide more useful guidance in the near future. Until then, physicians must navigate the Wild Web on their own.

This week Marie Locklin Bodi, a Santa Rosa teacher and member of Santa Rosa Professional Educators (SRPE) threatened to file suit against her school district claiming that its new social networking policy infringes on her First Amendment rights. Additionally, SRPE is considering filing a second Unfair Labor Practice lawsuit claiming the School District’s new social media policy is overly restrictive.

The new nine-page policy, which was added to the Acceptable Use Policy, outlines how employees should use digital communications at work and when working in their official capacities from home. According to Carmen Paige’s article, Teachers File Suit Over Social Media Policy, “It covers e-mail, Facebook and similar websites, Twitter, blogs, personal websites, text messages, instant messages, chat rooms, list serves, podcasts, cell phones and Blackberrys.” It is important to note that sites such as Facebook and Myspace cannot be accessed on the School District’s Internet browsers.

Employees have been asked to sign the policy by Sept. 3. Although Bodi agrees with some parts of the policy, she has concerns and does not plan to sign the document. Paige quotes Bodi: “When you sign the form, it says the district has the right to put your name, picture and employment on the Internet, and you have no discretion on how it is used.” Emerson told the Santa Rosa Press Gazette this is not true. According to Matthew Pellegino’s article, SRPE, Teacher ‘De-Friending’ District Media Policy, “Emerson also stated if a teacher does not feel comfortable with having their information on the school’s website, it can be taken down.”

SRPE president Rhonda Chavers says that Bodi could be terminated if she does not sign the policy. Again Emerson says this is not true. While an employee may be suspended or terminated if they do not sign the Acceptable Use Policy, there is no disciplinary action for not signing the social media policy. Rather, the signature just acknowledges the employee has read the social media section of the Acceptable Use Policy and they understand it. However, Emerson admits that the District will record the names of those that did not sign. Additionally, according to Paige’s article, “Those who do not sign it will be denied access to the district’s network.” Emerson has agreed to sit down with Bodi and Chavers to try and avoid a lawsuit. It is likely that this is one of many similar lawsuits to come.

To learn more about social media polices please read my other articles:

• Social(Media)izing at Work
• Companies Need Social Media Policies

Although companies have started to take advantage of social media to communicate their messages or brand, most have not established social media policies. Social media policies should provide guidelines for employees’ online communication. These policies are necessary to protect employers because one offensive post by an employee can have serious legal and economic consequences for the employer.

Currently many companies have communication and media policies in place that explain the company’s expectations when employees use the phone and email or speak to the media.  Social media policies are merely an expansion of the latter policies to another platform. Companies must think about social media in the same context as all other forms of communication and regulate it accordingly. According to Jennifer Van Grove’s article, 3 Great Social Media Policies to Steal From, “You need a social media policy that sets the foundation of your expectations, empowers your employees to tweet or blog without fear, rewards social media problem-solving, and educates staff on things to avoid in both personal and professional status updates.” That means companies must develop guidelines, train employees, and actively monitor online social sites to ensure employees portray an appropriate social media presence.

While it is clear that every company should adopt social media policies, it may be hard to decide on terms. Fortunately, there is a lot of help for companies online. In Sheppard Mullin’s article, Why Every Business Should Have A Social Media Policy, he lists 12 bright line rules that every social media policy should include.

Furthermore, some of the biggest brands have published their social media policies; these can be used as templates for companies looking to implement similar policies. Chris Boudreaux established Social Media Governance, a fully-searchable database of more than 140 social media policies from a wide range of industries.

Of course, after learning the dos and don’ts of creating a social media policy, it is important to consult with an attorney.