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Social Liability


January 10, 2010

Read Time

5 minutes


LinkedIn, Facebook and Twitter have made it possible for anyone, anywhere, to distribute information about who they are and what they’re doing to hundreds, if not thousands, of individuals. If you want people to know what’s happening in your business, this means opportunity. If you’d prefer to keep some things quiet, it could mean danger.

It’s important for employers to set social networking policies because with the benefits of social networking come significant risks,” says Laura Friedel, a partner in the Labor and Employment Service Group at Levenfeld Pearlstein, LLC. “Employees will use social networking sites regardless of whether their employers want them to or not. By putting a policy in place, and following it, employers help control their risk in this area.”

Smart Business spoke with Friedel about some of the areas of risk for employers and how to proactively address them.

How do companies benefit from having a social networking policy in place?

Having a social networking policy not only protects you, the employer, but also helps employees to understand the expectations and the implications of their actions. Explicitly outlining your policies – and including them as part of training – puts everyone on the same page. If you haven’t updated your policies recently, make that a priority. With the rapid development of new social networking tools, policies can quickly become outdated. If your business’s computer policy is more than a year old, it’s quite possible that it does not adequately reflect the electronic issues that are facing your company right now.

How should a social networking policy address employee monitoring and privacy concerns?

A policy should clearly state that the company may monitor activity on social networking sites and on the Internet, and that employees should have no expectation of privacy in statements that they make in these forums. Having this position in writing puts you in a far better position if you uncover electronic information that you want to use. This is a critical point because cases frequently turn on whether the employee had a reasonable expectation of privacy in the communications at issue.

How should your social networking policy address harassment?

In certain circumstances, the interactions of your employees online could be considered harassment. Employees should be made aware that the company’s prohibitions on harassing, discriminatory and retaliatory conduct in the workplace also prohibit that type of behavior online to the extent that it relates to the workplace or those associated with it. Companies should investigate claims of Internet or social networking harassment as they would other harassment that relates to employees or the workplace. Finally, because discrimination and harassment issues are particularly troublesome when they involve managers and subordinates, companies should consider prohibiting managers from becoming ‘friends,’ ‘followers’ or ‘contacts’ of their subordinates.

What role do social networking sites play in pre-employment screening?

Looking at social networking sites can provide you with useful information about the professionalism of candidates, among other things. But you need to consider the risks involved with how you find this information. Companies considering using social networking sites for pre-employment screening should think carefully about how they are going to use this tool and, in particular, about which candidates they are going to screen and the type of searches they are going to conduct for each candidate. Consistency is important, as is an understanding that not everything you find online is necessarily true. In no situation should a company access information that it is not authorized to access. Much of the risk in using social networking sites for pre-employment screening is that the company will learn information that it can’t legally rely on in making hiring decisions. One strategy that can work for some companies is to have someone other than the hiring manager do the social networking research and only pass on relevant information to the person doing the hiring. That way, the hiring manager doesn’t learn about a candidate’s children, religious affiliation, sexual orientation or union activity. It also prevents the hiring manager from seeing pictures (for instance, of a woman with two young children) that could sway how he or she looks at the candidate and his or her commitment to the position. Any company considering using social networking to learn more about a candidate should also consider revising its employment application to indicate that such screening may be conducted and should confirm that it is complying with the Fair Credit Reporting Act and other applicable laws.

What safeguards do you recommend employers put in place to make sure employees don’t post trade secrets and confidential information online or take it with them when they leave?

Even seemingly innocent comments such as, ‘I’m traveling to New York to meet with a potential partner,’ or, ‘I’m so stressed about the big deal coming through at the end of the month’ can leak confidential information. To avoid inadvertent disclosure of business information, discuss social networking and Internet postings as part of your confidentiality policy and train your employees on what types of statements could lead to problems. Social networking can also raise issues when it comes to keeping customer, vendor and business partner information confidential. Employees who use social networking as part of their work duties should be encouraged or required to adjust the security settings on their social networking accounts. Companies should also consider requiring these employees to maintain separate business accounts that the company can access.


Filed under: Employment & Executive Compensation

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