Social media impacts the entire employment continuum

According to social media statistics for 2012, 62% of adults worldwide now use social media. It's no wonder then, that one of the biggest issues currently facing the workplace is the role played by social media. This issue has forced legal experts to grapple with multiple questions, such as whether it is appropriate for an employer to conduct an Internet background search on an applicant, whether it is appropriate for an employer to control its employees' online activity, whether it is appropriate for an employer to discipline its employees for communicating about work-related topics via social media, and whether an employer owns the social media accounts used by its employee to promote the employer's business. Fennemore Craig has some tips for employers to consider from before the hire through termination.

1. Before the hire: Employers Should Proceed With Caution When Performing Internet Background Checks On Applicants. While it is clear that an employer can learn a good deal of information about a potential employee from the Internet, it is not so clear whether the employer should use that information to make hiring decisions. In some cases, an employer may obtain useful information that is legally harmless, and in other cases, it may obtain information that exposes it to liability for such claims as discrimination and negligent retention and hiring. Even if the employer does not use the information in the hiring decision, that the employer obtained such information before making a determination may cause the applicant to believe that a legal violation occurred. As a best practice, if an employer conducts an Internet background search on an applicant, the employer should not request access information and should ensure that the person performing the search is not the same person making the hiring decision.

2. At the Hire: Employers Should Make Clear Who Owns the Social Media Forum That Employees Use To Promote The Employer's Business. As employers leverage social media to increase their business, cases have arisen concerning who owns the pages and accounts for an employee's Facebook, LinkedIn, and Twitter accounts when such social media forum is used by the employee for work-related purposes. Even if employers ultimately prevail in such litigation, it is not without considerable expense. As a best practice, an employer should have a social media policy that clearly discusses appropriate content for such communication and provides for ownership of social media forums during and after employment.

3.During the Employment: Employers Beware When Disciplining An Employee For Work-Related Comments Made Over Social Media. The National Labor Relations Act (Act) protects an employee's right to communicate with co-workers regarding wages, hours and working conditions. This protection applies to employees in unionized and non-unionized workplaces. Thus, while there are circumstances where an employer can terminate an employee for his personal online communication performed off-the-clock and outside the office, there are other contexts where an employer cannot take such adverse action. The National Labor Relations Board (Board) has said that it would not be a violation of the Act to terminate an employee for posting photos of an embarrassing and potentially dangerous accident at an employer's adjacent dealership. But, the Board has said it would be a violation of the Act to terminate an employee for posting mocking comments and photos with co-workers about serving hot dogs at his employer's car event. As a best practice, employers should establish a narrow social media policy that does not chill employees from discussing the terms and conditions of their employment. Before taking disciplinary action against an employee for his communication via social media, the employer also should carefully consider whether such conduct is protected by the Act.

4.After the Employment Ends: Employees Should Appreciate That Their Social Media Activity Is Fair Game Following Termination. Employees often do not appreciate that, in the event of litigation, their social media activity may not be considered private or confidential. Courts have permitted employers to conduct discovery of former employees' social media communications relevant to the employees' emotional distress claims, noting that the communications may be relevant to the cause and the severity of the employees' alleged emotional distress. As a best practice, in the event that an employer becomes involved in litigation against a former employee, the employer should consider whether social media activity may be relevant to the claims alleged.

Ann Morgan is the managing partner of Fennemore Craig Jones Vargas in Reno. Reach her at amorgan@fclaw.com. Lori Higuera is a labor and employment attorney with Fennemore Craig Jones Vargas. Reach her at lhiguera@fclaw.com.