Running head: HR ON FACEBOOK Human Resources on Facebook: Strategies for Reducing Risk to Employers Melanie S. Echavarria BUS 670 Dr. Countryman October 10, 2011
HR ON FACEBOOK 2 Human Resources on Facebook: Strategies for Reducing Risk to Employers The business world has undergone a major paradigm shift with the proliferation of theinternet, social media sites, and other communications technology. An increasing reliance on andconsumption of social media sites like Facebook, Twitter, and LinkedIn in the business worldhas resulted in considerable changes to the ways that employers behave, and the field of humanresources (HR) is no exception (Elefant, 2011, Wood, 2010, Zeidner, 2009). In fact, HRdecisions that utilize social media sites and search engines as part of the decision-making processhave a strong potential for infringing upon the rights of applicants and employees. In order tomitigate their legal liability, employers must codify company policy regarding company use ofsocial media sites for HR decisions. Overview This paper will explore the ways that employers use social media with employees in termsof recruitment, hiring, disciplinary actions, and firing. The legal issues related to reliance onsocial media for making human resources decisions will be explored and supported by examplesof recent case law in this field. Strategies will be presented for reducing employers’ risk and/orliability by developing an employer social media use policy, providing training, ensuring carefuldocumentation, and responding promptly and appropriately to possible risks (Shawaluk &Lippman, 2011, Thompson & Olson Bluvshtein, 2010, Wood, 2010). Finally, I will brieflydiscuss the relevance of this topic to my academic goals and potential future employment. Social Media. Social media “describes technology that facilitates interactive information,user-created content and collaboration” (Elefant, 2011, p.1) and includes networking sites suchas Facebook, LinkedIn, and Twitter. In 2009, over 250 million people were using Facebook astheir primary site for online social networking. By January 2011, that number had increased to
HR ON FACEBOOK 3over 550 million unique active users every month (Carlson, 2011). Facebook is now the mostpopular social media site in the world, ranking above Twitter, MySpace, and LinkedIn in termsof both global and U.S. traffic (eBizMBA, 2011, Elefant, 2011). For employers, “numerous risk areas have been identified,” (Health Care ComplianceAssociation, 2009, p.1), yet the bulk of the literature on this topic focuses on employers’ liabilityfor employee actions on social media sites. There is a growing interest, however, in examiningthe areas where employers walk a fine line between acceptable business practices and illegalactions. Employers need to become aware of the ways that use of social media sites in makinghuman resources decisions may put them at risk of breaking the law. Human Resources Online. The human resources field would seem to be a great fit withsocial media sites, as social networking allows HR professionals to connect with potential andcurrent employees with an immediacy, thoroughness, and convenience that is often obscured byhaving to make appointments and complete unending piles of personnel documents. In fact,many HR departments are “integrating collaborative and social networking tools such aslistservs, Facebook applications and video” (Zeidner, 2009, p.49) into the portfolio of servicesoffered to employees. However, utilizing social media also exposes HR departments to legal riskbecause they may view personal details that could impact their ability treat employees andapplicants equally under the law (Elefant, 2011, Zeidner, 2009). This may be why fewer employers are using search engines and social media sites to screenjob applicants in 2011 than in 2008 (Society for Human Resource Management, 2011). Althoughthere is a perception that a majority of businesses use social media sites to screen applicants ormonitor employee behavior, a recent survey shows that the number of employers using thesesites for screening has decreased over the past three years by approximately ten percent,
HR ON FACEBOOK 4primarily due to employer concerns about liability for information discovered in the searchprocess. The number of businesses who are implementing social media use policies has,conversely, increased significantly over the same period as new litigation brings employerliability to the forefront of employment law. Legal Issues As suggested in this paper, all employers who use social media put themselves at risk forlitigation (Elefant, 2011), whether based on their actions or the actions of their employees. Someindustries, such as utility companies, are subject to more stringent requirements regarding theironline activity than other industries, but all companies can potentially be held liable forcompensatory damages, be assessed fines, or be required to comply with other court mandatesfor misuse of social media. It behooves employers to set their HR departments the objective ofinvestigating those areas where the company is most at risk for inappropriately using socialmedia sites. Discrimination. Businesses are held to the same standards prohibiting discrimination inrecruitment or hiring online as they are in their regular business environment (Elefant, 2011,Mallor et al., 2010). However, HR departments must keep in mind that they are responsible forensuring that their recruitment practices do not disproportionately disadvantage certain groups,thus exposing them to claims of discriminatory hiring practices (Levitt, 2010). For instance,minorities are highly underrepresented on LinkedIn, thus a company that uses only LinkedIn fortheir job recruiting may be accused of “unlawfully attempting to keep job opportunities off limitsto African Americans and Hispanics” (Elefant, 2011, p.9). In addition, HR professionals maycome across information on a social media site that could sway their judgment when makinghiring decisions, such as knowledge of the applicant’s marital status, age, or sexuality. The HR
HR ON FACEBOOK 5department who did not hire an individual after learning about those details would have to provethat their decisions were made for some other reason in order to show that they were not undulyinfluenced to reject a member of a protected group. Violation of Constitutional Protections. Employers must also be aware of the ways that theiruse of social media sites may violate the rights of protected groups or protected activities. Thestatutes and regulations can vary widely from state to state, so it is critical that the HRdepartment thoroughly researches the laws particular to their location and industry. For example,twenty-nine states have adopted so-called lifestyle statues intended to protect employees and jobapplicants (within reason) from being penalized for their off-duty behavior (Elefant, 2011, Segal,2011). In addition, certain states such as California have more robust speech protections foremployees than other states, which can complicate cases in which an employer terminates anemployee due to what they term inappropriate online posting/behavior (Segal, 2011). Liability for Employee Actions. At the same time that employers are being restricted fromusing information gained on social media sites to recruit and make hiring decisions, they mayalso be held accountable for not using that information. In other words, employers may have alegal responsibility for investigating and reporting to the authorities when social media searcheslead them to suspect that an employee is a possible danger to themselves or others (Elefant,2011, Johnson, 2005). This can make it especially difficult for employers to simultaneouslyrespect employee privacy and constitutional rights while also monitoring and investigatingpotentially risky situations. In one case, Doe v. XYZ Corporation, 887 A.2d 1156 (N.J. 2005), the employer was madeaware of the employee’s inappropriate use of company computers to view pornography. Theemployer had a policy in place regarding monitoring of computer use and expected behaviors,
HR ON FACEBOOK 6yet did not investigate the complaints further or turn them over to authorities. This behavior andlack of action continued for four years, at which time the employee was arrested and chargedwith both possession of child pornography and molestation of his stepdaughter. The companywas held liable for their lack of follow-through on the employee’s behavior, which was known,reported multiple times, prohibited by company policy, and also illegal. It was argued that, if theemployer had acted sooner and reported their findings to authorities, the employee may not havebeen enabled to progress to the point where he molested his stepdaughter. Litigation and eDiscovery. In the case discussed above, the employer’s liability was shownby recovering all of the paper and electronic documents proving the company’s awareness of theproblem and lack of action. The issue of data storage, in terms of “preservation, privacy andadmissibility” (BITS p.22), is especially relevant for employers dealing with the proliferation ofcommunications such as text messages, tweets, emails, and web log posts (Fowler, 2011). It isnot simply enough for an employer to be aware of the laws and write an electronic use policy,however; as shown in Doe v. XYZ Corp. above, the final piece of the puzzle is taking action toensure compliance with those regulations. If a case comes to court, that action or lack thereofshould be supported during legal discovery, which serves to emphasize the need for additionalpolicies around documentation of HR’s responses to these scenarios. Strategies for Reducing Risk Considering all of the risks associated with social media use by HR professionals, it is nowonder that more and more companies are developing electronic use policies that address usageof social media sites. Employers should designate a multidisciplinary team that can worktogether to develop a clear, thorough internet use policy that specifically addresses social mediause by both employees and employers. Shawaluk and Lippman (2011) suggest that this team be
HR ON FACEBOOK 7made up of representatives from “human resources, legal, information technology, marketing,risk management, public relations, compliance and any other affected functions” (para. 4). Thisteam, preferably headed by an HR professional, would be responsible for ensuring that thecompany is able to educate management and staff on legal issues, standardize policies andprocedures related to social media usage, thoroughly train personnel, monitor staff activityrelated to the policy, and then take action when possible infractions are discovered. Educate. Management should be educated about legal issues related to employee privacy,anti-discrimination regulations, employer liability, communications laws, and many other areasthat may be connected to social media use. The HR department may hear complaints from co-workers regarding pictures posted on an employee’s Facebook page, for instance, and should beup to date with current court rulings in order to determine the next course of action. In the UnitedStates, that might mean becoming familiar with the Electronic Communications Privacy Act orwith “state laws that outlaw adverse employment action for off-site actions by employees that arenot unlawful” (Wood, 2010, “Employee Use of Social Media”). Multinational corporations mustalso research international laws, which can differ depending on “the location where such data isstored or processed or by the nationality of the individual” (BITS, 2011, p.5). Once the HR teamhas established a basic legal education around the use of social media in hiring, firing, and otherHR decisions, they may begin to develop standardized policies and procedures. Standardize. The first step in getting to where you want to be is to find out where you are.Employers need to examine their current roles, responsibilities, and policies regarding use ofsocial media before they can determine which areas need to be rewritten, strengthened, ordiscarded. An official policy should be developed in order to provide even a basic level ofprotection for the employer (Callegari, 2010), but the policy absolutely must “implement ground
HR ON FACEBOOK 8rules for managers and other decision-makers who will be using social media in hiring, firing, ordisciplining” (Thompson & Olson Bluvshtein, 2010). Thanks to the internet, HR professionalshave a vast number of resources for developing social media use policies. For instance, websitessuch as Compliance.org provide hundreds of sample policies as well as links to industry-specificregulations, such as those pertinent to education, private for-profit, or not-for-profit businesses. Train. Once a policy is established, the HR department must implement a thorough, ongoingstaff development program that clearly explains the policy and outlines the types of acceptableand prohibited behavior for staff and management. It is important for employers to documentthat they have provided training by requiring employees to sign off on training materials, so thatin case of later litigation the employer can prove that they have done due diligence. Besidesreducing civil litigation risks, fully training employees and managers may also reduce thefrequency and severity of inappropriate or illegal behavior connected to usage of social mediasites (BITS, 2011). The goal of training is to empower employees with knowledge about laws,provide them with resources when they have questions or concerns, and ensure that the companyhas done its utmost to reduce risk of social media abuses by its staff. Monitor. After policies have been developed and disseminated, and all staff have beentrained in company procedures, the next step is to monitor employee activity and respond topotential risks promptly and appropriately. This can be a touchy situation in that the employerwalks a fine line between excessive surveillance and inattention to online behavior (Segal, 2010,Turri, Maniam, & Haynes, 2008, Wood, 2010). Keeping in mind the privacy laws discussedearlier, companies maintaining a policy that electronic use by employees will be monitored havea legal responsibility to follow through with monitoring and investigating their findings(Johnson, 2005, Wood, 2010). This can be related directly to cases where an employer has been
HR ON FACEBOOK 9found liable for their inaction or lack of response to an employee’s complaints about a coworkerthreatening violence (Mallor et al., 2010). In other words, if the company becomes aware of arisk through their monitoring of employee behavior online, and also has a company policystating that management will monitor employee behavior to ensure adherence to said policy, theycan be held liable if they do not do so. Take Action. This brings us to the final strategy for reducing risk: taking action. Assuggested above, a policy is no good if it is created, disseminated, and incorporated into staffdevelopment and monitoring programs if any information garnered through those actions is thenleft to sit in a vault. Employers have a legal as well as an ethical duty to protect their business aswell as their employees, not to mention a duty to the general public not to negligently empowertheir employees to inflict harm. When complaints arise, or when inappropriate or illegal behavioris suspected, it is incumbent upon the employer to investigate those concerns carefully andpromptly in order to truly reduce their risk of litigation and the risk of harm to others. Case Study. At a junior high school in a fairly large school district, one teacher hadestablished a personal Facebook page and had “friended” several students, staff, and faculty. Sheincluded on her page highly personal material such as photos of herself in revealing clothingdrinking alcohol, cartoons of people and animals displaying gang signs, and written posts thatincluded frequent references to sex, alcohol use, and insults about students and staff at theschool. When another faculty member brought the Facebook page to the attention of thePrincipal, the teacher was called in for a disciplinary meeting by the Principal, who did notinvolve HR, the risk management department, the teacher’s union, or any other personnel in themeeting. The teacher was directed to remove her Facebook page, make it private, or remove allstudents from her “friend” list. In addition, the meeting was broadly discussed around the school
HR ON FACEBOOK 10by other faculty and staff, and the result was that the teacher in question filed a grievance withthe union against the Principal. The problem began when the Principal bypassed the procedures already in place for dealingwith this type of situation. The school district already had an established electronic use policythat prohibited profanity on teacher’s sites, discouraged adding students as friends on socialnetworking sites, and had other stipulations in place regulating the online behavior of employees,including unionize faculty. If the Principal had proceeded according to District policy or askedfor the involvement from HR, the situation could have remained low-key and the teacher mighthave been formally disciplined during a meeting at which her union representative was present.Instead, it ballooned into a legal and political battle in which the teacher engaged representationand threatened to file a lawsuit alleging discrimination, among other charges. The burden tojustify one’s actions shifted from the employee to the employer, all of which could have beenavoided by simple application of the policy and procedures already in place. Conclusion There is a conflict between individual freedom and corporate responsibility, betweenprivacy and liability, between personal choice and public behavior (Turri, Maniam, & Hynes,2008) that is perfectly exemplified by the policies and procedures around use of social media inthe workplace. Social media sites are part of a larger technological phenomenon that promises topush the boundaries of employment law further than ever before. Employers who disregard theissue of electronic use and social media sites by employees are almost guaranteed to suffer illeffects from their neglect. Those negative consequences can range from damaged corporatereputations to leaking of proprietary information and all the way to liability for criminal actscommitted by employees. In addition, employers must be aware of their own role in using social
HR ON FACEBOOK 11media sites for recruitment, hiring, disciplinary action, and firing decisions. In order to mitigatethe potential for discrimination, violation of privacy laws, and other unlawful acts, employersmust implement an electronic use policy that defines the company’s role in using social mediasites for HR decisions. Only through the establishment of such a policy, and the commitment tocontinually revisit and revamp said policy, can employers find a remedy for the litigiousnessassociated with social media use in the workplace.
HR ON FACEBOOK 12 ReferencesBITS/The Financial Services Roundtable. (2011, June). Social media risks and mitigation. Retrieved from http://bitsinfo.org/publications/security/BITSSocialMediaJun2011.pdfCallegari, J. (2010, October 15). Social networking affects hiring practices. Long Island Business News. Retrieved from http://libn.com/2010/10/15/social-networking-affects-hiring-practices/Carlson, N. (2011). Facebook has more than 600 million users, Goldman tells clients. Business Insider. Retrieved from http://www.businessinsider.com/facebook-has-more-than-600- million-users-goldman-tells-clients-2011-1eBizMBA. (2011, April). Top 15 most popular social networking websites. Retrieved from http://www.ebizmba.com/articles/social-networking-websitesElefant, C. (2011). The “power” of social media: Legal issues and best practices for utilities engaging social media. Energy Law Journal, 32(1), 1-56.Fowler, G.A. (2011, April 25). Are you talking to me? Yes, thanks to social media; and the best companies are listening. Wall Street Journal (Online). Retrieved from http://online.wsj.com/article/SB10001424052748704116404576263083970961862.htmlHealth Care Compliance Association & Society of Corporate Compliance and Ethics. (2009). Facebook, Twitter, LinkedIn and compliance: What are companies doing? Retrieved from http://www.corporatecompliance.org/staticcontent /09SocialNetworksSurvey_report.pdfJohnson, J. (2007, June 6). Employee internet misuse: How failing to investigate pornography may lead to tort liability. Washington Journal of Law, Technology, and Arts, 4, Article 1. Retrieved from http://www.lctjournal.washington.edu/Vol4/A01Johnson.htmlLevitt, H. (2010, January 7). Web a hiring minefield for candidates and bosses: Social networking sites can scuttle job hopes, spark legal challenges. Edmonton Journal, p. E.2.
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