Social Sites Can Pose New Challenges for Employers

Over the last few years, employers have had to deal with the implications of the expanding digital age and its encroachment into the workplace. Employers have revised policies and procedures to encompass BlackBerrys, cell phones and the Internet, as used during work hours and to conduct work during off hours. Now, as these technologies have become commonplace, along comes the explosion of “social network” and a new set of legal challenges.

Social networking sites, such as Facebook, MySpace, LinkedIn, Plaxo and Eons, to name a few, foster the development of online communities of people who share similar interests or activities. These sites are creating a host of new and challenging issues for employers whose policies and procedures must keep pace.

In today’s digital world, many job seekers will at least “Google” a company to learn as much as possible about it before interviewing or before accepting an offer of employment. Many companies will also gather intelligence about job applicants, through Google or one of the many available social networking sites.

This practice is commonplace and certainly not illegal. Nevertheless, using social networking sites to gather information on which to base employment decisions carries with it risk.

Companies are allowed to hire and fire people for any reason, or for no reason, unless the decision violates a specific federal or state law (discrimination, for example).

In other words, an employer is legally free to make stupid or unfair decisions so long as in doing so a specific law is not violated. A few of the laws that may be violated by decisions made on the basis of information gathered from social networking sites are as follows:

Anti-discrimination laws - An employer who screens out applicants of certain races, ethnicities or sexual orientation based on information discovered from social networking sites may be violating federal, state or local anti-discrimination laws.

Fair Credit Reporting Act - The FCRA applies to all employment-related background checks, not just to credit checks. An investigator who uses social networking sites to conduct a background check may violate the Fair Credit Reporting Act if the information gathered from a site forms the basis of a decision not to hire the applicant and is not disclosed as the basis of the decision.

Privacy laws - Employers that “hack” into protected areas of social networking sites may subject themselves to claims of invasion of privacy.

Employees also risk violating the law if they are not careful. Many, if not most, employers have policies, procedures and/or contracts with their employees that restrict employees from disclosing confidential information or trade secrets, either while employed and after their employment ends.

Employees generally understand that contacts and information stored on an employer’s CRM software belong to the employer. Employees may not understand, however, that the same contacts and information stored on a social networking site like LinkedIn may also belong to the employer.

Just as employers revised policies and procedures to apply to new technologies such as BlackBerrys, cell phones and the Internet, employers now should carefully review their existing policies, procedures and confidentiality agreements to cover social networking, one of the newest of the new technologies.

- Martha Zackin

Attorney Martha Zackin practices at the Boston law firm of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo. She can be contacted at MZackin@mintz.com.