Social Media Employment Risks and How Supervisors Can ...€¦ · Social Media Employment Risks and How Supervisors Can Manage Them . Minnesota Association County Officers . February

MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST

Social Media Employment Risks and How Supervisors Can Manage Them

Minnesota Association County Officers

February 14, 2018


PRESENTED BY:

The information contained in this document is intended for general information purposes only and does not constitute legal or coverage advice on any specific matter.

Jennifer Wolf [email protected]

MCIT Staff Counsel for Risk Control


Overview

• Using Social Media and Internet Searches When Making Hiring Decisions

• Social Media Employment References

• When Employee Personal Social Media Use and Professional Life Collide

• Regulating Employee Use of Social Media

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What Is Social Media?

• Social Networking – Facebook

– Twitter

– Google+

– SnapChat

• Blogging – Blogger

– Tumblr

– WordPress

• Professional Network – LinkedIn

• Video/Photo Sharing – YouTube

– Flickr

– Instagram

– Pinterest

• Online Forums

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SOCIAL MEDIA, THE INTERNET AND HIRING

Social Media and the Workplace

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Social Media, the Internet and Hiring

• It’s a policy decision.

– Will a social media or an internet search tell you anything about how this individual will perform in the job?

– How relevant is the information that may be found to the job?

– Do the benefits outweigh the risks?

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Accuracy and Context of Information

• May be difficult to find the correct individual

• Not all information on the Internet is accurate, complete or reliable

• Not all applicants may have an Internet presence

• Savvy applicants have cleaned up their Internet identities

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Social Media Use

• Estimated 2.13 billion active Facebook world wide

• 39% of Facebook users report being married, while another 39% report being single

• Consumer Reports State of the Net Report 2012 – 39.3 million identified a family member in their profile

– 20.4 million included a birth date and year

– 7.7 million “liked” a page pertaining to religious affiliation

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Social Media Use

• Based upon survey projections:

– 4.7 million “liked” a page about health conditions or treatments

– 2.3 million “liked” a page regarding sexual orientation

– 25% said they falsified information in their profiles to protect their identities

• Worldwide: Estimated 83 million fake profiles

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INTERESTING STATS, BUT WHY DO THEY MATTER????

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Potential Claims For….

• Discrimination on the basis of protected class status

• Retaliation for exercising First Amendment rights

• Discrimination or retaliation under other state or federal laws

– Workers’ Compensation

– FMLA

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May Violate Background Check Requirements

• Background checks requirements apply to social media/internet searches.

– Record-keeping (Title VI and ADA)

– Fair Credit Reporting Act – applies if hiring a third party to conduct the search

– “Ban the Box” and criminal offender rehabilitation statutes


Circumventing Privacy Controls?

• Accessing private social media sites without or exceeding authorization.

– Federal Stored Communications Act or related state laws

– Invasion of privacy – intrusion upon seclusion

– Unlawful search and seizure (Fourth Amendment)

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Requesting Passwords or Access to Private Social Media Accounts? • Is this legal?

–Human rights/civil rights laws?

– Federal Stored Communications Act?

– Fourth Amendment?

• Is this an invasion of privacy?

• Is this a violation of the Terms of Service, i.e. breach of contract?

• Could this lead to identity theft?

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RISK MANAGEMENT SUGGESTIONS Social Media, the Internet and Hiring


Policy Decision

• Consider whether the benefits of Internet and social media searches outweigh the risks

• Consult with legal counsel regarding the legal implications of conducting searches prior to conducting

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Develop Policies and Procedures

• If using Internet/social media searches, develop policies and procedures: – Prohibit conducting

searches outside of established procedures

– If doing, conduct search in conjunction with official background check

– Searches should be uniform in format and in application

– Shield the hiring authority from any protected information discovered

– Limited searches to publicly available sites and to job related information

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Be Cautious

• If searching private social media sites:

– Get permission/waiver, but note that generally cannot waive some claims (e.g. discrimination)

– Update the Tennessen Warning

– Beware of checking personal messages or private communications that may have greater protection

– Do not exceed authorization granted by candidate

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Risk Management Suggestions

• Keep records of information reviewed in the search

• Be able to articulate a nondiscriminatory, job-related reason before disqualifying a candidate based upon the information found in the search

• Consult with legal counsel before using any information received from the searches

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SOCIAL MEDIA EMPLOYMENT REFERENCES

Social Media and the Workplace

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Social Media Employment References

Professional networking sites may permit former employees to request and receive recommendations from former supervisors and co-workers.

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Risks to the Public Employer

• Could be used as evidence of pretext in a lawsuit

• Violation of MGDPA if based upon performance evaluation data and no written consent given

• Minn. Stat. § 181.987 protections may not apply

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• Consider prohibiting supervisors or managers from giving professional recommendations on professional networking sites

• If permitting professional recommendations, obtain a written release from employee

• Apply any existing post-employment reference policies to recommendations on professional networking sites

• Require employees providing personal recommendations to include a disclaimer

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EMPLOYEE SOCIAL MEDIA USE Where Personal meets Public

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Is Employee Social Media Use a Concern?

• Public has higher expectations for public employees, especially those with higher profiles or involved in critical public services

• Public employees need to maintain credibility with the public

• Public employees have greater access to sensitive information

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WHAT COULD GO WRONG? A Case Study in

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WHAT ARE THE RISKS AND CONCERNS?

Employee Social Media Use


Harm to Reputation and Credibility

• Employee personal comments could be misinterpreted and attributed as official statements

• Employee postings could be harmful to public entity’s reputation or credibility

• Could negatively affect employee’s standing in the eyes of the public

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Social Media Postings Have Evidentiary Value

• Could be used against employee or employer in a lawsuit

• Could be used as evidence of discrimination in the provision of public services

• Could negatively affect employee’s credibility as a witness

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Employee Safety

• Personal information posted online could affect employee (and family) privacy

• FBI Public Service Announcement - www.ic3.gov/media/2015/150421.aspx

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Employer Policies Still Apply

• Social media postings could create a hostile work environment or be evidence of employment discrimination

• Posting of not public data could violate applicable data privacy statutes and internal policies


Defamation

• Statement is communicated to a third party

• Statement is false

• Statement tends to harm the claimant’s reputation and to lower the claimant in the estimation of the community

Invasion of Privacy

Publication of private facts:

• Publication is a matter related to a claimant’s private life

• Publication of this matter would be highly offensive to a reasonable person

• Matter is not of legitimate concern to the public

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Crash Images Leaked

www.ocregister.com/2012/01/31/family-gets-24-million-over-grisly-crash-images/


Why Do Employers Block or Regulate Social Media Use at Work?

• Lost productivity

• Increased exposure to computer viruses

• Greater argument that action done within course and scope of employment


“FRIENDS AND SUPERVISORS” Social Media

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Why Does It Matter?

• Perception of favoritism

• Can’t “unsee” things

– Discipline matter

– Concerted activity

– Protected information

• Potentially imputed knowledge

• Potential oversharing

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• Consider Pros/Cons of Social Media Connections – Not all social media sites are equal -- Linkedin v.

Facebook

• Discuss potential concerns/issues as a management team

• Understand implications and make intentional and thoughtful “connections”

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REGULATING EMPLOYEE SOCIAL MEDIA POSTS

Considerations

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Considerations in Regulating Employee Social Media Use

• First Amendment: freedom of speech

– Public employee speech is generally protected if

• The employee is speaking as a private citizen on a matter of public concern; and

• The employee’s interest in the speech outweighs the public employer’s legitimate interest in delivering efficient government services

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• Postings regarding the terms and conditions of employment may be protected under labor relations laws

• Certain federal and state laws provide anti-retaliation protections for exercising rights

– Example: Family and Medical Leave Act (FMLA)

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• Accuracy and Context:

– Not all information on the Internet is complete or reliable

– Posting could be taken out of context or not made by employee

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• Accessing a private social media site without authorization or in excess of authorization could raise claims under:

– Federal Stored Communications Act

– Minnesota Privacy of Communications Act

– Invasion of privacy

– Fourth Amendment unlawful search and seizure

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• Consider blocking or restricting all personal use of social media or social networking Web sites through the public entity’s computer systems or equipment

• Educate employees regarding the potential risks for social media use and the possible consequences for misuse

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• Consider whether a social media use policy or guidelines are desirable

• Consult with legal counsel

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THINK BEFORE YOU TWEET Government Accounts


WHOSE ACCOUNT IS IT?


HOW TO PROTECT YOURSELF AND YOUR ORGANIZATION

Employee Social Media Use


Think Before You Post and Train Your Subordinates • The Internet is

permanent, and you are personally responsible for what you post

• There is no sarcasm font

• Carefully consider any comments you post on public websites or social media posts

• Be aware of any personal information you may inadvertently be giving out

• Work policies may still apply to your private social media posts


Monitor Your Social Media Presence

• What are you posting about yourself? – Consider keeping your personal and professional life

separate

– “The postings on this site are my own and do not represent my employer’s positions, strategies or opinions.”

• What are others posting about you? – Consider asking friends and family to limit the

information they post about you (or your family)


Check Your Privacy Settings

• Remember all computers and devices

• “Private” and “Friends Only” can be deceiving

• Be aware of who you tag and what their privacy settings are

• Know which apps you have given access to your social media posts


DON’T BECOME A POWERPOINT SLIDE


DISCUSSION Ask Questions and Share Experiences

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Documents

Social Media Employment Risks and How Supervisors Can ...€¦ · Social Media Employment Risks and How Supervisors Can Manage Them . Minnesota Association County Officers . February