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MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST
Social Media Employment Risks and How Supervisors Can Manage Them
Minnesota Association County Officers
February 14, 2018
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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
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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
– Google+
– SnapChat
• Blogging – Blogger
– Tumblr
– WordPress
• Professional Network – LinkedIn
• Video/Photo Sharing – YouTube
– Flickr
• 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
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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
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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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Risk Management Suggestions
• 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
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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
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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/
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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
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“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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Risk Management Suggestions
• Consider Pros/Cons of Social Media Connections – Not all social media sites are equal -- Linkedin v.
• 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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Considerations in Regulating Employee Social Media Use
• 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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Considerations in Regulating Employee Social Media Use
• 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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Considerations in Regulating Employee Social Media Use
• 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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Risk Management Suggestions
• 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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Risk Management Suggestions
• 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
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WHOSE ACCOUNT IS IT?
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HOW TO PROTECT YOURSELF AND YOUR ORGANIZATION
Employee Social Media Use
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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
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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)
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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
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MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST
DON’T BECOME A POWERPOINT SLIDE
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MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST
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