Social Networking in the Workplace

In today's world, information flows freely at the click of a mouse. Nearly 200 million blogs, or approximately one for every 30 people on earth, can chronicle the lives of Internet users in publicly accessible posts. Nineteen million Twitter users can complain about their jobs instantly by “Tweeting.” A reported 33% of Americans online are on Facebook, where they can upload embarrassing or questionable digital photos. Technology connects ' and exposes ' us like never before.

This exponential growth has significant consequences for the workplace. Not only may employees be accessing such sites at work, creating a drag on productivity, they may be using social networking and blogging sites to harass co-workers, criticize their supervisors, disclose company trade secrets, or simply discuss controversial topics in a manner that may be identified with the company. With all of these possibilities and more, it is not surprising that, in a 2007 nationwide survey from the American Management Association and ePolicy Institute, one-third of employers reported that they had fired an employee for misusing the Internet.

Dismal Statistics

Despite the various risks that social networks and blogs pose to businesses, employers have been slow to adopt and disseminate policies for appropriate usage of these Web sites. In a 2009 study from Deloitte LLP, 23% of employees reported that their employers had no policy about using social networks while at work. Another 24% did not know if there was a policy or not, and 11% knew a policy was in place, but did not know what it was. Thus, more than half of employees did not know what online conduct was permissible.

This two-part article addresses the employment law consequences presented by social networks and blogs. It highlights the laws that are implicated when an employer decides to take action related to an employee or applicant's use of social networking or blogging, as well as provide employers with best practice tips regarding the development of policies related to employee conduct on such sites.

Hiring in the 21st Century: Gathering Information Online

Employers have access to more information when making hiring decisions than ever before, thanks to Google, social networks, and blogs. According to a 2007 Ponemon Institute study, one in three hiring managers search Google for information on job applicants. One in five search social networks. Some employers require disclosure of social network affiliation and blogs on job applications. The Obama administration requires its own applicants to disclose any blog posts, aliases used when writing online, and links to their Facebook pages. Other employers ask for disclosure during the interview. According to a spokesman for the Missouri State Teachers Association, at least one Missouri superintendent interviewing teacher applicants asks if they had a Facebook or MySpace page. If the applicant says yes, the superintendent proposes looking at the page right then. According to a 2008 Careerbuilder.com survey, approximately one-third of Google and social network searches led to rejection of applicants, and the uncovered information influenced more than 60% of employers when making hiring decisions.

Proceed with Caution

While an online search of applicants may provide a great deal of useful information, an employer using such information must proceed with caution, ensuring that the use of this information conforms with applicable laws. Perhaps the two most obvious laws implicated by online searches are Title VII (and its state counterparts) and the Fair Credit Reporting Act.

Title VII prohibits employers from refusing to hire an applicant based upon his or her race, color, religion, sex, or national origin. The Age Discrimination in Employment Act affords the same protection based upon a person's age, as does the Americans with Disabilities Act for those with qualifying disabilities. Some state laws protect against other forms of discrimination as well, such as sexual orientation. By visiting an applicant's Facebook page or using Google, an employer very well could learn the applicant's race, gender, age, or the existence of a disability from pictures or other posted information. Making an employment decision based on this information could result in liability for unlawful discrimination. (See Too Much Information? by Josh Davis and Neil McKittrick in the November, 2009, issue of Employment Law Strategist.)

Many employers go to some lengths to keep such information away from their decision-makers, even if such information is maintained for affirmative action purposes. However, one simple Google search could undermine any such efforts made by a company.

The conclusion of this article will discuss firing in the 21st century, the laws that impact social networking in the workplace, and developing a social networking and blogging policy.

William C. Martucci, a member of this newsletter's Board of Editors, Kristen A. Page and Jennifer K. Oldvader are corporate defense lawyers in the National Employment Litigation and Policy Group at Shook, Hardy & Bacon, L.L.P. in Washington, DC, and in Kansas City, MO. They may be reached respectively at [email protected] or 202-783-8400; [email protected] or 816-474-6550; [email protected] or 816-474-6550. Justin Smith, a 2009 Summer Associate from the University of Missouri, provided valuable research assistance.

In today's world, information flows freely at the click of a mouse. Nearly 200 million blogs, or approximately one for every 30 people on earth, can chronicle the lives of Internet users in publicly accessible posts. Nineteen million Twitter users can complain about their jobs instantly by “Tweeting.” A reported 33% of Americans online are on Facebook, where they can upload embarrassing or questionable digital photos. Technology connects ' and exposes ' us like never before.

This exponential growth has significant consequences for the workplace. Not only may employees be accessing such sites at work, creating a drag on productivity, they may be using social networking and blogging sites to harass co-workers, criticize their supervisors, disclose company trade secrets, or simply discuss controversial topics in a manner that may be identified with the company. With all of these possibilities and more, it is not surprising that, in a 2007 nationwide survey from the American Management Association and ePolicy Institute, one-third of employers reported that they had fired an employee for misusing the Internet.

Dismal Statistics

Despite the various risks that social networks and blogs pose to businesses, employers have been slow to adopt and disseminate policies for appropriate usage of these Web sites. In a 2009 study from Deloitte LLP, 23% of employees reported that their employers had no policy about using social networks while at work. Another 24% did not know if there was a policy or not, and 11% knew a policy was in place, but did not know what it was. Thus, more than half of employees did not know what online conduct was permissible.

This two-part article addresses the employment law consequences presented by social networks and blogs. It highlights the laws that are implicated when an employer decides to take action related to an employee or applicant's use of social networking or blogging, as well as provide employers with best practice tips regarding the development of policies related to employee conduct on such sites.

Hiring in the 21st Century: Gathering Information Online

Employers have access to more information when making hiring decisions than ever before, thanks to Google, social networks, and blogs. According to a 2007 Ponemon Institute study, one in three hiring managers search Google for information on job applicants. One in five search social networks. Some employers require disclosure of social network affiliation and blogs on job applications. The Obama administration requires its own applicants to disclose any blog posts, aliases used when writing online, and links to their Facebook pages. Other employers ask for disclosure during the interview. According to a spokesman for the Missouri State Teachers Association, at least one Missouri superintendent interviewing teacher applicants asks if they had a Facebook or MySpace page. If the applicant says yes, the superintendent proposes looking at the page right then. According to a 2008 Careerbuilder.com survey, approximately one-third of Google and social network searches led to rejection of applicants, and the uncovered information influenced more than 60% of employers when making hiring decisions.

Proceed with Caution

While an online search of applicants may provide a great deal of useful information, an employer using such information must proceed with caution, ensuring that the use of this information conforms with applicable laws. Perhaps the two most obvious laws implicated by online searches are Title VII (and its state counterparts) and the Fair Credit Reporting Act.

Title VII prohibits employers from refusing to hire an applicant based upon his or her race, color, religion, sex, or national origin. The Age Discrimination in Employment Act affords the same protection based upon a person's age, as does the Americans with Disabilities Act for those with qualifying disabilities. Some state laws protect against other forms of discrimination as well, such as sexual orientation. By visiting an applicant's Facebook page or using Google, an employer very well could learn the applicant's race, gender, age, or the existence of a disability from pictures or other posted information. Making an employment decision based on this information could result in liability for unlawful discrimination. (See Too Much Information? by Josh Davis and Neil McKittrick in the November, 2009, issue of Employment Law Strategist.)

Many employers go to some lengths to keep such information away from their decision-makers, even if such information is maintained for affirmative action purposes. However, one simple Google search could undermine any such efforts made by a company.

The conclusion of this article will discuss firing in the 21st century, the laws that impact social networking in the workplace, and developing a social networking and blogging policy.

William C. Martucci, a member of this newsletter's Board of Editors, Kristen A. Page and Jennifer K. Oldvader are corporate defense lawyers in the National Employment Litigation and Policy Group at Shook, Hardy & Bacon, L.L.P. in Washington, DC, and in Kansas City, MO. They may be reached respectively at [email protected] or 202-783-8400; [email protected] or 816-474-6550; [email protected] or 816-474-6550. Justin Smith, a 2009 Summer Associate from the University of Missouri, provided valuable research assistance.