Social media have transformed corporate communication practices: Tools such as Twitter and Facebook allow organizations to speak directly to and solicit responses from the public quickly and affordably. But the original intention of these media were to connect friends, not customers or employees; for businesses, accustomed to managing all aspects of communications (and muting dissent), social media can be an awkward fit.
The most popular use of online tools by companies is to recruit and screen potential employees. A 2011 survey by the Society for Human Resource Management found that 56% of companies use social media to find candidates, up from 34% in 2008. In addition, in 2011 more than 25% of employers went online to check applicants’ profiles on social-media platforms. In doing so, however, they can become aware of personal details such as a candidate’s race, gender or sexual orientation — potentially violating anti-discrimination laws.
For disseminating internal corporate communications, social media has been slower to catch on. According to 2011 research from the International Association of Business Communicators, only 16% of companies used social media frequently to engage employees and foster productivity, while 23% do so occasionally, 28% rarely and 33% never. Part of the issue is the desire of many firms to control corporate communications: Only 25% of employees surveyed had full access to such communications and were encouraged to participate.
Employees naturally use social media for personal reasons — and sometimes they include comments related to work. In January 2013, the U.K. electronics retailer HMV laid off hundreds of staff members — including the company’s online marketing and social media planner, who live-tweeted her and the other employees’ dismissals. The same month, a waitress at an Applebee’s restaurant posted a photo of a bill on which the customer wrote, “I give God 10%, why do you get 18%?” While the restaurant employee stated that her post was lighthearted and that no harm was intended, she was fired. In an article on the incident, the Harvard Business Review said it “gave everyone from labor organizers to social media evangelists something to fret about.”
Such events sometimes reach the courts. In October 2010, an unfavorable tweet from an employee of the community group Hispanics United of Buffalo prompted support from her coworkers — and resulted in their termination for violating the company’s internal harassment policy. A National Labor Relations Board ruling stated that since the employers were collectively discussing work issues, their discussion on social media was protected by laws pertaining to labor organizing. The NLRB’s guidelines indicate that, among other things, “rants” and the use of company logos on social media are not protected. Employers need to be mindful that a “general prohibition of the use of colorful language, distasteful critiques and unseemly remarks in social media (otherwise known as ‘courtesy clauses’) may be construed to restrict employees’ rights to publicly criticize their employer.”
Many legal issues around social media ownership and use in a business setting remain undefined, such as ownership of social media assets such as handles, walls and contacts when an employee leaves. Below is a selection of recent scholarly articles relating to social media in the workplace, with an emphasis on employee recruitment and screening, and the dynamics of employer/employee social media issues. The Delaware Employment Law Blog profiles several ongoing cases relating to social media that can be useful for journalists writing about social media and workplace issues.
A 2012 report from Ernst & Young, “Protecting and Strengthening Your Brand: Social Media Governance and Strategy,” gives a brief overview of all of these major risk-related issues for organizations.
For citizen journalists, whistle-blowers and media members looking to learn more about questions of digital free speech, see the Digital Media Law Project at Harvard’s Berkman Center for Internet & Society; the project produces research in this area and participates in pioneering legal work.
“Privacy Is Dead: The Birth of Social Media Background Checks”
Saunders, Sherry Denise. Southern University Law Review, March 2012.
Abstract: “For years employers have used social networking sites (SNS) such as Facebook, Twitter, MySpace, Google and LinkedIn to dig up incriminating evidence on prospective or current employees. Now credit reporting agencies (CRA) may conduct “social media background checks” on employees as well. The Federal Trade Commission (FTC) has given companies, like Social Intelligence, the stamp of approval to rummage around the Internet for anything a potential job candidate has done or said online in the past seven years. Both CRAs and employers must comply with the Fair Credit Reporting Act (FCRA). This article addresses the legal ramifications of social media background checks and the difficulty in applying the FCRA to this new employment practice.”
“The Writing on the (Facebook) Wall: The Use of Social Networking Sites in Hiring Decisions”
Brown, Victoria R.; Vaughn, E. Daly. Journal of Business and Psychology, June 2011, Vol. 26, No. 2, 219-225.
Abstract: “The popular media has reported an increase in the use of social networking sites (SNSs) such as Facebook by hiring managers and human resource professionals attempting to find more detailed information about job applicants. Within the peer-reviewed literature, cursory empirical evidence exists indicating that others’ judgments of characteristics or attributes of an individual based on information obtained from SNSs may be accurate. Although this predictor method provides a potentially promising source of applicant information on predictor constructs of interest, it is also fraught with potential limitations and legal challenges. The level of publicly available data obtainable by employers is highly unstandardized across applicants, as some applicants will choose not to use SNSs at all while those choosing to use SNSs customize the degree to which information they share is made public to those outside of their network. It is also unclear how decision makers are currently utilizing the available information. Potential discrimination may result through employer’s access to publicly available pictures, videos, biographical information, or other shared information that often allows easy identification of applicant membership to a protected class. For the practice to progress in a positive direction, evidence for the validity and job-relevance of information obtained from SNSs needs to be established. Organizational researchers and practitioners also need to promote awareness and attempt to create safeguards against the potential negative outcomes related to misuse of SNSs by employers.”
“The Influence of Social Networking Web Sites on the Evaluation of Job Candidates”
Bohnert, Daniel; Ross, William H. Cyberpsychology, Behavior and Social Networking. June 2010, 13(3): 341-347. doi:10.1089/cyber.2009.0193.
Abstract: “This study investigated how the content of social networking Web site (SNW) pages influenced others’ evaluation of job candidates. Students (N=148) evaluated the suitability of hypothetical candidates for an entry-level managerial job. A 2×4 design was employed: resumes were either marginally qualified or well qualified for the job. SNW printouts reflected (a) an emphasis on drinking alcohol, (b) a family orientation, or (c) a professional orientation; participants in a control group received no Web page information. In addition to a main effect for resume quality, applicants with either a family-oriented or a professional-oriented SNW were seen as more suitable for the job and more conscientious than applicants with alcohol-oriented SNW pages. They were more likely to be interviewed. If hired, they were also likely to be offered significantly higher starting salaries. Results are discussed in terms of implications for both managers and applicants.”
“To Screen or Not to Screen? Using the Internet for Selection Decisions”
Davison, H. Kristi; Maraist, Catherine C.; Hamilton, R.H.; Bing, Mark N.
Employee Responsibilities and Rights Journal, March 2012, Vol. 24, No. 1, 1-21. doi: 10.1007/s10672-011-9178-y.
Abstract: “Organizations are increasingly relying on Internet searches and social networking websites to uncover detailed and private information about job applicants. Such Internet screening techniques have the potential to provide additional information beyond that found using traditional screening approaches. However, questions regarding the legality and appropriateness of this practice, as well as issues regarding the standardization, reliability, and validity of the information obtained, need to be addressed. The current work describes these issues associated with Internet screening and provides recommendations to help ensure this practice is used appropriately in organizations. Suggestions for future research on Internet screening are also discussed.”
“Invisible Discrimination: Employers, Social Media Sites and Passwords in the U.S.”
Pate, Richard L. International Journal of Discrimination and the Law, February 2013, Vol. 12, No. 3, 33-46. doi: 10.1177/1358229112470300.
Findings: “Since it seems clear that employers are actually using the online content to make [hiring] decisions, the first clear choice is to require employers to report to the [U.S. Equal Employment Opportunity Commission] and the applicant every instance of social media site review (in the context of making hiring-related decisions.) As a result, the applicant and EEOC would have notice of the review and the option to re-enter the adversarial system should discriminatory conduct be suspected…. The second option consists of applying a rebuttable presumption element to discrimination cases dealing with this issue. In discrimination cases related to this issue, employers would hold the burden of rebutting the presumption that they did view social media sites when they made their hiring decision.”
“2011-2012 Towers Watson Change and Communication ROI Study”
Towers Watson, New York, NY, 2012.
Findings: “While social networks are ideally suited to building community within an organization, overall, just over half (51%) of our participants use it for this purpose, and only about one-third of those find it effective. Not surprisingly, among companies that are highly effective at communicating, we find a higher frequency of use and effectiveness…. Less than half (47%) of companies use social media to support organizational change efforts. Among highly effective change management firms, that number grows to 54%…. Nearly half (48%) of our participants report they are using social media to allow employees to deliver feedback to senior management. Companies with highly effective communication are 1.5 times as likely to do this as companies with low-effectiveness scores (56% versus 38%) — and they are more likely to find it effective, too.”
“Blurred Boundaries: Social Media Privacy and the Twenty-First-Century Employee”
Sánchez Abril, Patricia; Levin, Avner; Del Riego, Alissa. American Business Law Journal, Spring 2012, Vol. 49, No. 1, 63–124. doi: 10.1111/j.1744-1714.2011.01127.x.
Findings: “Millennials are cognizant of their reputational vulnerability on digital media but are not willing to sacrifice Internet participation to segregate their multiple life performances. Lacking the technological or legal ability to shield performances, Millennials rely on others, including employers, to refrain from judging them across contexts. Their stated expectations of privacy, therefore, appear to be somewhat paradoxical: employee respondents generally want privacy from unintended employer eyes, and yet they share a significant amount of personal information online, knowing it could become available to employers and others.”
“Media Preferences of Digital Natives’ Internal Communication: A Pilot Study”
Friedl, Julia; Vercic, Ana Tkalac. Public Relations Review, March 2011, Vol. 37, 84-86. doi: http://dx.doi.org/10.1016/j.pubrev.2010.12.004.
Findings: “Contrary to popular opinion, not all employees below 30 are completely immersed in digital technology. The results of this study show that even though digital natives prefer digital media in their personal lives, this is not necessarily reflected in their business lives. Respondents who participated in this study showed a surprisingly high preference for traditional media when internal communication is concerned. This is consistent with a finding in European Communication Monitor studies and can explain why communicators overestimate future uses of social media (when asked to predict how much they will invest in the near future in such media in their organizations) — when in reality their adoption seems to be more in line with the findings of this study regarding preferred uses.”
“Knowledge Protection Challenges of Social Media Encountered by Organizations”
Vayrynen, Karin; Hekkala, Riitta; Liias, Tuula. Journal of Organizational Computing and Electronic Commerce, March 2013, Vol. 23, No.1-2, 34-55. doi: 10.1080/10919392.2013.748607.
Findings: “Conversely, for older employees, it might be easier to understand that certain organization-related knowledge should not be shared in SM… the younger generation, so-called digital natives, is less cautious with personal information and therefore more vulnerable to threats and risks that the internet and related technologies pose… on the other hand, young people might be better aware of the blurry audience in SM, and the speed with which information can spread in SM, since they have grown up [with] this type of media.”
“Cybervetting and Monitoring Employees’ Online Activities: Assessing the Legal Risks for Employers”
Mikkelson, Katherine. The Public Lawyer, Summer 2010, Vol. 18, No. 2.
Findings: “In addition to using social networking sites to vet potential employees, employers are increasingly monitoring their current employees’ online activities (including social networking sites) even in the absence of a specific policy. The Society of Corporate Compliance and Ethics and the Health Care Compliance Association conducted a survey in 2009, polling 800 individuals at for-profit, nonprofit and government institutions. Fifty percent of those respondents did not have a specific policy in place addressing employee use of social networking sites. Of the organizations that did have a policy, 34% included it in a general policy on online usage while only 10% specifically addressed the use of social networking sites. Fifty-three percent reported that their organizations either do not monitor such use, haven’t had an issue or have a “passive” system in place (acting when an issue arises). Despite respondents indicating few policies in place, 24% of respondents reported having to discipline an employee for social networking activities.”
“Workplace Consequences of Electronic Exhibitionism and Voyeurism”
Herbert, William A. Technology and Society Magazine, Fall 2011, Vol. 30, No. 2.
Abstract: “The popularity of email, blogging and social networking raises important issues for employers, employees and labor unions. This article will explore contemporary workplace issues resulting from the related social phenomena of electronic exhibitionism and voyeurism. It will begin with a discussion of the international social phenomenon of individuals electronically distributing their personal thoughts, opinions, and activities to a potential worldwide audience while at the same time retaining a subjective sense of privacy. The temptation toward such exhibitionism has been substantially enhanced by the advent of Web 2.0. The article then turns to the legal implications of electronic voyeurism including employer surveillance of employee workplace computer use and employee off-duty blogs and social networking pages. It will also examine the issues associated with employers and recruiters conducting Internet searches for information about job applicants. In the conclusion, the article will discuss various means for responding to the workplace issues resulting from electronic exhibitionism and voyeurism on and off the job.”
“The Effects of Sanctions and Stigmas on Cyberloafing”
Ugrin, Joseph C.; Pearson, J. Michael.Computers in Human Behavior, Vol. 29, No. 3, 812-820. doi: http://dx.doi.org/10.1016/j.chb.2012.11.005.
Abstract: “Cyberloafing has become a pervasive problem for many organizations and some researchers have suggested that a deterrence approach utilizing acceptable use policies for Internet-based applications coupled with mechanisms designed to monitor employee Internet usage and detect unauthorized usage can be an effective way to reduce it. However, the results of studies that have examined the effects of acceptable use policies and detection mechanisms on reducing cyberloafing are mixed. This study attempts to reconcile those inconsistencies by using an experiment to show that the deterrence model affects various types of cyberloafing differently. The results reveal that individually, threats [of] termination and detection mechanisms are effective deterrents against activities like viewing pornography, managing personal finances and personal shopping, but must be coupled together and actively enforced to dissuade activities like personal emailing and social networking.”
“Sexual Harassment Versus Workplace Romance: Social Media Spillover and Textual Harassment in the Workplace”
Mainiero, Lisa; Jones, Kevin. Academy of Management Perspectives. February 2013, Vol. 27, No. 1. doi: 10.5465/amp.2012.0031.
Findings: “Given the alchemy of sex, lust, love and technology, romantic issues will continue to vex employees, human resource professionals and legal experts as they discover what the new social media brings to the workplace in the realm of questionable personal vs. professional acts of behavior. Social media creates worrisome aspects that directly affect workplace behavior even if those behaviors conducted outside the office are subtle and do not necessarily meet the technical legal standard for harassment. This topic deserves much further ethical debate and academic and legal discussion, as the ‘grey area’ of ethical conduct must be specified further for future accountability and action on the part of human resource professionals, business ethicists and legal scholars. No one wants to lose their job for inappropriate conduct; yet employees need to know the rules before they engage in such questionable social media communications. The application of clear social media policies that intersect with anti-harassment policies already in place in most firms will ameliorate future disruptive workplace situations brought about by this fast-paced new age of social media, and will provide human resource professionals, legal scholars and employees with a much-needed prescriptive guide for ethical conduct.”
“Monitoring Risks before They Go Viral: Is It Time for the Board to Embrace Social Media?”
Larcker, David F.; Larcker, Sarah M.; Tayan, Brian. Rock Center for Corporate Governance at Stanford University, Closer Look Series: Topics, Issues and Controversies in Corporate Governance, No. CGRP-25, April 5, 2012.
Findings: “There are several reasons why the board might find the information provided through social media to be valuable. First, directors are responsible for oversight of the corporation. This includes monitoring and advising the senior executive team as it develops and implements the corporate strategy. Information gleaned through social media might provide unique and relevant insights into the success of these efforts and supplement the traditional key performance indicators (KPIs) that directors use to evaluate management and award bonuses…. Second, information gathered through social media might alert the board to risks facing the organization in a way that is not currently available. These risks might include: Operational risk: How exposed the company is to disruptions in its operations. Reputational risk: How protected are the company’s brands and corporate reputation. Compliance risk: How effectively the company complies with laws and regulations. There is some evidence that social media provides effective early warning in these areas.”
“Legal Implications of Employee Social Media Use”
Dennis, Corey M. Massachusetts Law Review, 2011, Vol. 93, No. 4.
Findings: “Employees’ use of the Internet, particularly social media, has resulted in productivity problems in the workplace. For instance, employees often spend time reading and sending personal emails, bidding on auction sites, reading news and blogs, playing online games, and interacting with friends on social networking sites…. XYC Corp.’s IT Department had conducted limited investigations of Employee’s computer use and had determined that he was visiting pornographic websites, including child pornography websites, and had reported the findings of these investigations to high-level management. However, although Employee’s supervisor told him to stop his inappropriate computer usage on one occasion, he recommenced these activities shortly thereafter and was not prevented from continuing this usage The court found that XYC Corp. had the ability to monitor Employee’s Internet activities and that he had no legitimate expectation of privacy that would prevent the company from accessing his computer to determine whether he was using it to view adult or child pornography. Accordingly, the court concluded that because XYC Corp. had knowledge that Employee was viewing child pornography on his computer, it had a duty to act by terminating Employee or reporting his activities to law enforcement authorities, or both. This decision demonstrates that an employer may face civil liability where the employer has become aware of the employee’s unauthorized computer use and a third party is harmed by that use.”
“A Survey of Social Media Issues Before the NLRB”
Eastman, Michael J. Labor, Immigrant and Employee Benefits Division, U.S. Chamber of Commerce, 2011.
Findings: “A survey of publicly available materials indicates that the NLRB has reviewed more than 129 cases involving social media in some way. While most of these cases are at the very initial stage, and may not be meritorious at all, some are more advanced. At least two Board decisions have social media components, as do another two decisions by administrative law judges. There are at least seven settlement agreements involving social media cases and the Board’s General Counsel has issued complaints in an additional four cases. The General Counsel has also issued ten memoranda involving social media, eight of which are opinions from the Division of Advice. The issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts. With respect to employer policies restricting employee use of social media, our review of cases found many specific policies alleged to be overbroad, including those that restrict discussion of wages, corrective actions and discharge of co-workers, employment investigations, and disparagement of the company or its management. The context in which the policy was adopted and even the issue of whether a rule or policy has been actually adopted are also important in these cases. The issues raised with respect to employer discharge or discipline of employees based on their social media posts include the threshold matter of whether the subject of social media posts is protected by the Act, as well as whether the employer unlawfully threatened, interrogated, or surveilled employees.”
“Information Security Policy Concerns as Case Law Shifts toward Balance between Employer Security and Employee Privacy”
Jungck, Kathleen; Rahman, Syed (Shawon) M. Conference on Security and Management, 2011.
Findings: “Case law, including Quon v. Ontario, Stengart vs. Loving Care, and Long v. U.S. Military Court, has defined specific, limited boundaries in which employer policy may be not be sufficient cause to violate an individual’s expectation of privacy. In both Convertino and Stengart, privileged communications with an attorney were ruled off limits, regardless of policy . In addition, the court found in Stengart that any reasonable person would have an expectation of privacy when utilizing a personal, password protected e-mail account and would not expect an employer to copy those communications to a cache on the hard drive, an obscure technical detail . The Supreme Court in Quon identified seven criteria for evaluating expectations of privacy, including [14, p. 24]: (1) Existence of clear, explicit employer policy; (2) Alteration of employer policy by informal practices; (3) General expectations of employers as a whole; (4) The level to which monitoring and review were to be anticipated based on the usual course of business; (5) Societal norms on the use of technology as part of an individual’s self expression; (6) State statutes affecting monitoring notice requirements; (7) Availability of equivalent, privately purchased devices.”
Keywords: Facebook, Twitter, technology, research roundup, social media