Social Media Legal Pitfalls

I have led an MP roundtable group of half of the largest local firms in Chicago for over 20 years.  In October, the presenter was Frank Saibert, Chair of the Labor & Employment Group of the law firm of Ungaretti & Harris.  The topic:  Social Media Pitfalls.  Here are the highlights.

* 53% of employees think their social media pages are none of their employer’s business.
* 65% of employers used software to block employees’ access to certain websites.
* 61% of employees say they will not change their online activity even if their boss is
watching.
* Over 1/3 of employers decided not to hire a candidate because of their social media
profile.

Half of the roundtable firms carry EPLI insurance (Employment Practices Liability Insurance) for losses not covered by D&O or comprehensive general liability, such as claims related to social media.

It is illegal for an employer to visit the Facebook or LinkedIn profiles of prospective employees as a way of ruling out candidates based on their age, gender or physical disability.  Don’t think that you can do this without anyone finding out.  Forensic IT professionals can discover whether or not you visited these sites.

Several states including Illinois have passed a law that prohibits employers from requiring –or even asking – current or prospective employees to provide login information to their social media sites.  And don’t try to be sneaky:  An employer cannot use someone else’s password to access an employee’s Facebook if the employer is not an invited guest.

It is legal for employers to block specific employees’ access to social media sites on their company computers, and to discipline employees with a track record of surfing social media sites on company time. However, an employee’s use of  Facebook to post unkind or critical remarks about a supervisor is not legal grounds for dismissal because the NLRB considers an employee’s social media sites as private.

If an employer discovers that an employee has posted a resume on an employment web site, it IS legal to fire the employee on the grounds that the employee is disloyal.

If a firm pays for a person’s mobile phone and service, it is the firm’s phone, not the employee’s. Therefore, employer monitoring of  phone usage is not considered an invasion of privacy.

Firms should have a written policy for the use of social media in recruiting and other HR matters.  Hallmarks of a good policy includes  requirement by the employer to: (1) keep records of all sites visited in connection with recruiting and (2) ensure that all searches are run uniformly.