According to the results of a study announced today by the Pew Research Center, there has been a significant increase since 2005 in the percentage of adults who are online that participate in social networking. Notably, Pew says that 72% of online adults use social networking sites – and the growth is not just in younger adults. Pew reports that

those ages 65 and older have roughly tripled their presence on social networking sites in the last four years—from 13% in the spring of 2009 to 43% now.

Besides being a telling statement about the rapid transformation in our society, fueled by technology, it also should serve as a reminder to employers that an increasing percentage of their workers regularly engage in social media activity that in all likelihood is for both personal and business purposes. For many employers, existing policies and procedures have not caught up with technology and societal trends, such as indicated in the Pew report. When many employers set out to tackle social networking, they often are surprised about some law changes and other developments over the past few years. Here are some examples:

• Do our discrimination policies need to cover on-line activity?
  • If not, they probably should be revised accordingly.
• We want our employees to promote our products and services online, do we need to guide them about how to do so?
  • Well, yes. For example, you need to consider FTC guidelines which address appropriate online endorsements. If you are in the finance industry, you may have FINRA and SEC obligations. 
• Of course, we do not want employees to be posting all over Facebook, LinkedIn and Twitter disparaging comments about the company. We could prohibit that right?
  • No, not really. Doing so could put you in legal hot water with the National Labor Relations Board – whether you have union employees or not.
• Some of our managers like to review applicants’ public social media profiles. Are there risks there?
  • There can be. If the profile includes information about the manifestation of disease in the family members of the applicants (including an applicant’s spouse), for example, digging deeper into that information could expose the company to a discrimination claim under the Genetic Information Nondiscrimination Act. 
• Seeing this increase in adult participation in social networking, we want to screen more applicants’ social media accounts before making offers of employment, so we have included a place on our job application for the individuals to put usernames and passwords to all social networking accounts. Is this a good risk avoidance strategy? 
  • Probably not. Many states have passed or are considering new laws that prohibit employers from asking employees or applicants about this information.
• Can we at least prohibit employees engaged in social networking from disclosing all confidential information of the company?
  • Not if the prohibition is stated that broadly. You must narrow the scope of that information to the kind of information that would not infringe on an employee’s right to engage in "protected concerted activity" – that is, very generally, an employee’s right to commiserate with other workers about working conditions.    

Regulating employee social networking activity can be a legal minefield, but given the increasing presence of employees in that medium, there is no time like the present to begin addressing this issue in the workplace.