Workplace Privacy, Data Management & Security Report : Privacy Lawyers & Attorneys : Jackson Lewis Law Firm : Data Security, HIPAA & Confidentiality Issues

In connection with its coverage of national signing day, ESPN.com recently highlighted that social media is increasingly being utilized by coaches to contact, recruit and gather information about players. For players, it's a way to get recruited, control the message and interact with fans and other recruits at unprecedented levels.  And, like in the workplace, misuse of the media can have unfortunate consequences. A New Jersey high school prospect recently found this out when he was expelled from Don Bosco Preparatory after questionable posts were viewed on his Twitter account.  We have noticed similar trends and similar missteps in the employment context, where social media is often being utilized by companies and employees without first being well thought out. 

While the NCAA does provide some social media regulations, online interaction is far less regulated than more “old fashioned” forms of communication. According to Gregg Clifton, Co-chair of the Jackson Lewis’ Collegiate and Professional Sports Industry Group, “The days of face-to-face interaction between coach and recruit have been forever transformed. While the NCAA limits direct phone contact and texting by coaches to recruits, current NCAA regulatory freedom still permits coaches to use social media to contact, recruit, and gather information about players they are considering for their programs.” Similarly, both state and federal employment law struggle to keep up with the ever expanding social media realm.  This was most recently highlighted by the NLRB General Counsel’s report on social media. Consequently, even for employers that do have social media policies, they often do not address key issues such as the company’s presence on-line, regulatory requirements that apply in their industry, and how managers and supervisors should and should not be using the medium. In fact, as shown by many of the NLRB’s rulings discussed in the recent report, many policies contain overbroad proscriptions that violate a variety of laws.  

To keep up with social media, some schools are hiring individuals to monitor the social media of prospective student-athletes and to make sure that improper interaction is not occurring, as well as to ensure confidential information, such as under FERPA, is not being disclosed.  Employers too are seeking to hire individuals to not only assist in utilizing social media for marketing, but also individuals who can monitor how social media is and should be utilized in employment decisions.  This is particularly true for statutes and regulations which one may not necessary link with social media.  For example, employers often don’t realize that they may improperly acquire genetic information in violation of the GINA by “friending” or “following” employees or applicants. 

Of course, schools also are employers…so, while universities and colleges need to institute effective policies and procedures to address their use of social media in recruiting, they also must address social media usage in the employment context.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Have you hired a social media manager?  A social media guru/wizard/ninja/diva?  Each of these job "titles" are increasingly being used by companies to attract individuals who specialize in marketing a company's brand and/or services in social media.  A recent article in the Chicago Tribune and Los Angeles Times highlights just how prevalent these job titles are becoming corporate America.  

As companies struggle to keep up with the rapidly evolving world of social media, they are turning to hiring to hiring social media managers to handle their social media presence.  However, companies should be leery of the “jump first, look second” approach.  In fact, several key questions should be asked when delving into the realm of social media and hiring a new, typically younger employee with responsibility for a company’s social media existence and, therefore, its brand

Qualifications:

• What qualifications are you looking for?  Often companies seek a younger employee who is "tech-savy."  Traditional employment issues notwithstanding (i.e. age discrimination when an "older" employee is not hired/considered for a position), companies must also consider what their social media mission/focus will be.  For example, to the extent a company utilizes social media as a marketing tool, will you want your social media manager to have a background in marketing?  Similarly, to the extent you wish to utilize social media to handle client/customer complaints, will you want your social media manager to have a background in customer relations? Will you hire an external candidate who is perhaps unfamiliar with your company and its mission, or will you hire an internal candidate?

Responsibilities:

• What products/services will the social media manager be responsible for discussing/marketing?
• Will the social media manager have total freedom to explore and execute social media opportunities? 
• What policies will the social media manager be responsible for implementing?  Will the social media manager have responsibility for implementing the company's social media policy to employees and managers as well?

Training/Protocols: 

• What training will be provided to your social media manager?  For example, will the social media manager be trained on what information he/she should or should not consider when examining posts by customers and/or employees? 
• What policies will govern your social media manager’s employment?  Will the social media manager be permitted to “friend” employees/subordinates on social media or establish policies for employees to follow? 
• What safety protocols will be in place?  For example, if your company has a Facebook page, will you social media manager be responsible for maintaining the password and access to same?  How will the company transition its social media presence if and when the social media manager separates from employment? 

While the above list is by no means exhaustive, it demonstrates some of the additional considerations that must be examined when a company wishes to expand into social media.   Companies are often unaware of the need to consider these questions prior to implementing a social media policy or hiring a social media manager.  However, examining these points will help ensure your company’s social media experience flows more smoothly. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

More companies are becoming a part of the social networking community – setting up Facebook pages, “friending” their employees and customers, and so on. Businesses use these sites for a variety of purposes including marketing; client, employee and government relations; and community involvement. With lawmaking bodies and courts just beginning to struggle with the range of issues these new media create, companies should exercise caution and monitor the legal, technical, and other developments that may affect their involvement.

Companies already a part of (or thinking of joining) the social networking community should consider the effects on employee relations. In theory, the risks inherent in interactions between/among the company and/or its employees in a social networking environment are similar to risks the company faces in more traditional workplace settings such as the office or company-sponsored events. Online media, however, create some interesting questions:

• Are all of your employees aware of the company site so as not to feel left out?
• Do employees feel as if they must participate on the site – such as accepting other employees as “friends,” or agreeing with company posts? Do they need to be compensated for participation?
• Does a supervisor accepting some employees as friends and not others raise discrimination risks and morale concerns?
• Are employees free to dissent from company positions on its site? How far can employees go? Disciplining or terminating an individual’s employment with the company for activity on the company’s site or some other online social media can be risky on a number of grounds – such as under whistleblower laws (e.g., Sarbanes-Oxley and state/local laws), the National Labor Relations Act, and anti-discrimination and anti-retaliation laws.
• Does active company management of the site constitute monitoring of employee communications?
• How does the company handle the information about employees (and their dependents, friends and others) it may have access to as part of the employees’ participation in the network?

For sure, there are many areas about which companies need to think through as they consider their direct participation in the social networking community – the services of the social network provider, promoting the company’s presence in the community, consumer protection, copyright protections, and so on. Even the list above only begins to scratch the surface of the range of employment law issues that arise when an employer participates in this media.

• Email This
• Print
• Comments
• Trackbacks
• Share Link