social media employment risks and how supervisors can ...€¦ · social media employment risks and...

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 jwolf@mcit.org

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

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

SOCIAL MEDIA, THE INTERNET AND HIRING

Social Media and the Workplace

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?

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

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

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

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

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

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)

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?

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

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

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

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

SOCIAL MEDIA EMPLOYMENT REFERENCES

Social Media and the Workplace

Social Media Employment References

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

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

• 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

EMPLOYEE SOCIAL MEDIA USE Where Personal meets Public

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

WHAT COULD GO WRONG? A Case Study in

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

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

Employee Safety

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

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

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

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

Why Does It Matter?

• Perception of favoritism

• Can’t “unsee” things

– Discipline matter

– Concerted activity

– Protected information

• Potentially imputed knowledge

• Potential oversharing

• 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”

REGULATING EMPLOYEE SOCIAL MEDIA POSTS

Considerations

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

• 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)

• 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

• 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

• 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

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

• Consult with legal counsel

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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