Social media has become part of many Americans’ daily lives. Facebook has more than one-billion members — if the members were combined that would make it the world’s third largest country.
But as the use of such technology becomes more widespread, what should employers and employees do to protect themselves from possible litigation?
This was the topic of a workshop several Franklin County department supervisors attended Tuesday. Vaughn Burkholder, attorney and partner at Foulston Siefkin attorneys in Overland Park, spoke to county employees about the changing social media climate and its effect on the workplace. While Burkholder discussed potential policy and procedure for public employees, he said, the advice could be translated into the private sector as well.
An applicant screening practice at some companies, Burkholder said, is to do an online search for a potential employee’s name. But that search can lead to an employer finding out potentially protected information that could open them up for litigation. Those searches can yield personal information about applicants, such as religious affiliation or disabilities, and while it’s not illegal to know that information, it is illegal in a different way, Burkholder said.
“If it’s illegal for you to take that information into account in making these types of employment decisions, aren’t you as an employer actually better off not even knowing that stuff, than to know it and be accused of using it inappropriately?” Burkholder, who specializes in wrongful termination defense, said.
So if it can be harmful to do these types of searches, why do them? Burkholder said there are three potential reasons to use social media to discover relevant criminal history and negligent hiring claims, inappropriate posts about a current employer and poor judgment.
“These are kinds of things that are legitimate things that an employer might want to know about,” he said.
There are ways to do this type of applicant research, he explained, without seeing potentially harmful information. One such way is to get the applicant’s consent, he said. Others are to have a dedicated online researcher in-house or through a third party to do the search.
“You train them on what’s relevant and what’s not ... instruct the researcher to filter all protected information before providing a report to the search committee,” he said.
After an employee is hired, a company has to decide whether it will allow employees to use social media during work hours. Employees who are on social media sites during the day aren’t as productive and could potentially be writing incendiary things on their Web pages about employers or coworkers, he said.
People get fired on a regular basis for negative posts they have posted on social media, Burkholder demonstrated with several examples during his presentation. Employees in the private sector, he said, do not have a constitutional free speech right to disparage their employers, coworkers or clients. His advice, Burkholder said, if an employer hears rumors of that sort of talk on social media, is to conduct an investigation, talk to the employees involved and make a decision based on the findings.
When asked if they restricted social media use, no county employees answered in the affirmative. Social media use at the workplace can have its benefits, Burkholder said.
“It’s good for morale,” he said. “Sometimes you want to use it because you want to have better communication between employees.”
Allowing occasional social media use also appeals to a younger demographic in employees. It also, he said, provides the opportunity for a company to share its successes with the public.