Thumb Risks: Social Media's Impact on Employment Practices Liability
As we continue to become a society focused on instant gratification, there have been a lot of changes in how we communicate, what’s considered acceptable communication and how quickly communication is expected. Some of these changes became apparent with an increase in popularity of social media sites. This was then was accelerated with the accessibility of social media on smartphones.
As employees, managers and executive, we’ve all been coached to save and walk away from an email regarding a situation that’s controversial, unpleasant or inappropriate, and respond when both parties are in a better state of mind. With the accessibility of social media on our phones – where information is sent and recorded in the blink of an eye – are we losing our ability to step away from an issue in the heat of the moment?
While the issue of what’s appropriate and not appropriate is one that can continue to be debated, the better question is whether you as an employer understand the benefits and risks of social media, as well as how you’re going to manage this risk. As with a lot of technology, the benefits far outweigh the risks posed. For example, social media is a great way to market your company, engage your workforce and attract talent. The risks that become inherit with this, is now a forum that’s created for employees to instantly post thoughts or comments that (unlike email are typically directed to a specific person) span a wide range of audiences.
So what are the risks? Some of the risks that have evolved include:
- Display of unprofessional behavior
- Disparaging comments about management and company
- Alleged discrimination for hiring or refusing to hire
What are you – as the employer – required to do to combat these risks?
Like any employment solution, a one size fits all policy does not typically work. There are also conflicting schools of thought on what an employer should do.
Should an employer monitor their employees’ social media activity? Should an employer conduct a social media check before hiring a new employee? Should an employer dictate what their employees are allowed to say and the image they portray in relation to the company? Is a company allowed to use the information found on social media in disciplinary situations?
There has been a fair amount of litigation in this area, which while not exhaustive, has clarified a few key items:
- Ensure your policy doesn’t violate your employees’ rights to lawful employment practices
- Ensure your policy clearly outlines what your company monitors on their electronic platform, as an employee’s understanding of what 's private will impact the courts perception of what you were entitled to access
- Ensure that if you become aware of discrimination, harassment or other concern that action is taken in accordance with your company policy
- Train your employees on social media etiquette, and provide education on the negative impact social media can have on their professional and personal persona when misused
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