Missouri Law Bans Certain Teacher/Student Online Communications

Missouri has just passed a law prohibiting certain online communications between teachers and students.  The Amy Hestir Student Protection Action more broadly aims to protect students from sexual abuse, but the controversial provision in the law reaching student and teacher social media usage and online activity is section 162.069, which provides:

By January 1, 2012, every school district must develop a written policy concerning teacher-student communication and employee-student communications. Each policy must include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child's legal custodian, physical custodian, or legal guardian. Teachers also cannot have a nonwork-related website that allows exclusive access with a current or former student. Former student is defined as any person who was at one time a student at the school at which the teacher is employed and who is eighteen years of age or less and who has not graduated.

Although it's been coined the "Facebook law," it reaches other online communication tools, as well.  And it doesn't necessarily ban all contact between students and teachers online -- just communications on a "website that allows exclusive access with a current or former student."  The law doesn't define what this is, but it presumably aims to prevent private, direct communications between student and teacher.  This would also seem to prevent a teacher with a private Facebook profile from "friending" a student on Facebook.  (Or would it?  If the only communication between a teacher and student occurred on a publicly visible "wall"?)  A number of analysts have suggested teachers who want to communicate with students on Facebook should create public Facebook fan pages, which students can "like."  This way, students and teachers can communicate on its wall, allowing their exchanges to be publicly visable.  (But this wouldn't take away the ability to send a private message -- that capability is available on Facebook by default, whether you're friends with the person you want to message or not.)

Sure, it may be a decent policy for teachers not to Facebook friend students.  But requiring it by law (a relatively ambiguous law, no less) sets the stage for some likely problems.  Although well intended, the law sure seems to leave open a lot of questions.  What exactly is "exclusive access"?  Does this law go too far?  Does it infringe on students' or teachers' free speech or freedom of association rights?  Does this prohibit communication with students the teacher actually teaches or taught?  Or all students within the district?  What about retired teachers?  Retired teachers who still substitute teach in the school district?  Doesn't this law go much further than necessary to stop improper sexual conduct between student and teacher?  If teachers aren't sure what it means, won't it chill their speech?  The law discusses communications on "websites" -- so it wouldn't reach text messages, or phone calls for that matter.

The law goes into effect later this month, but gives school districts until January 1 of 2012 to implement their new policies.

NLRB Continues Aggressive Response to Employers' Social Media Policies It Deems Overbroad

The National Labor Relations Board recently issued two more complaints against employers that fired employees in response to the employees’ Facebook posts.

On May 9, the NLRB lodged a complaint against a non-profit organization in New York, saying it improperly fired five employees for Facebook posts that amounted to protected concerted activity. According to the press release, an employee posted on her own Facebook wall an allegation by a coworker that employees weren’t doing enough for clients. A group of employees responded to the Facebook post, defending their job performance and complaining about their working conditions (including work load and staffing issues). The employer fired the five employees who participated in the online discussion, saying the remarks amounted to harassment of the employee mentioned in the original post. The NLRB’s complaint claims the Facebook discussion was protected under the National Labor Relations Act because it involved a conversation among coworkers about the terms and conditions of employment, including their job performance and staffing levels.

The NLRB also issued a complaint last month against a Chicago BMW dealership that terminated the employment of a car salesman who posted pictures and commentary on his Facebook page criticizing a promotional event hosted by the dealership. (It sounds like he thought serving customers hot dogs and bottled water was a little lame and might negatively affect sales commissions.) The employee removed the posts immediately after management asked him to, but shortly thereafter, the car dealership still fired him. The NLRB alleges that this employee’s use of social media was also protected under the National Labor Relations Act. The dealership came forward to say the salesman was fired reasons other than his Facebook posts.

The NLRB has been increasingly involved in these Facebook firing cases. You may recall the NLRB complaint filed late last year charging a Connecticut employer with unfair labor practices when it discharged an employee who complained about her supervisor on Facebook. That case settled earlier this year.

These aren’t the only cases out there, and it seems the NLRB intends to keep a keen eye on social media issues. Employers should be careful when disciplining employees for their social media or online activities -- and should also ensure their social media policies or practices aren’t overbroad.

Check Out A Few of Erickson's Posts for IowaBiz on Technology, Internet, & Law

For those of you who may be interested, I thought I'd share a few posts I've written recently for IowaBiz, the official blog for the Des Moines Business Record, that touch upon technology, the internet, and the law:   

• May 31, 2011 post on a bill signed by Iowa's Governor that authorizes a study on online gaming.

• May 13, 2011 post discussing how employers may respond to the fairly common practice of employees including information about their workplace on Facebook or other social networking profiles. 

• April 13, 2011 post discussing the largely symbolic vote in the House to repeal the FCC's net neutrality rules (the measure isn't expected to pass the Senate).

• March 29, 2011 post discussing the importance of early planning stages in a company's creation of or updates to social media or social networking personnel policies.

Update, Update, Update Your Document Retention Policies!

With the increased online activity in business, companies should take time to review and update document retention policies sooner rather than later. Many companies probably already have policies addressing email systems, but these may need refreshing. Because more and more companies have become active on social media sites like Facebook and Twitter, it’s also wise to review or update document retention polices to ensure the scope will cover such social media activity. To the extent you have different policies addressing different technologies or communications, businesses should ensure they’re consistent. (Companies may want to avoid multiple policies if it’s possible to draft one that’s broad and flexible enough to capture all electronic communications.)

Keep in mind any special obligations that might exist for your particular business or industry. Federal and/or state regulations may impose special recordkeeping obligations or considerations. For example, and as I’ve mentioned before, the U.S. securities regulator, FINRA, has regulatory guidance regarding certain record-keeping obligations brokerage firm’s business-related communications online (including on social media sites and blogs).

Companies may struggle with apparent tensions that arise between obligations to preserve relevant communications versus associated privacy concerns.  (For example, privacy issues may arise when a company attempts to collect or store communications by employees or customers.)  Businesses would be wise to seek legal counsel in navigating these waters.

Remember online communications may become relevant in litigation – and companies have an obligation to preserve all relevant communications, documents, and information if litigation is pending or reasonably anticipated. A company that fails to properly preserve relevant information can face hefty sanctions by the court.

Connecticut Employer Settles Facebook Firing Case With NLRB

Yikes. My apologies for the massive delay since my last couple posts. Speaking of my last couple posts . . . remember that time American Medical Response of Connecticut fired an employee after she complained about her boss on Facebook? Shortly after the termination, the NLRB’s Hartford regional office issued a complaint against AMR, alleging the firing violated federal labor law. According to the complaint, the employee’s online comments constituted protected activity.  The complaint also alleged that the company's policies addressing online communications were overly broad.  Yesterday, the NLRB announced the case has been settled.  (Fun fact:  not only did the NLRB issue a press release, it also tweeted the update!)

twitter.com/nlrb

To review a few considerations employers may want to take into account, you may want to revisit my blog post, "Social Media Policies for Employers:  A Few Notes on the NLRA."

Social Media Policies for Employers: A Few Notes on the NLRA

Yesterday’s post discussed recent action by the National Labor Relations Board, pointing out that your employee’s Facebook posts or other online communications may be protected under the National Labor Relations Act. Many private employers don’t realize Section 7 of the NLRA protects the rights of all employees, regardless of union status, to engage in protected “concerted activities,” such as discussing wages, work conditions, and other terms of employment. In light of yesterday’s discussion, when reviewing or updating social media policies, employers may want to think about:

• An employer may violate the NLRA simply by maintaining certain work rules or policies, even if they’re not enforced, if the rule would reasonably tend to chill employees in exercising their Section 7 rights.
• Obviously, an employer violates the law if a workplace rule explicitly restricts Section 7 protected activities (i.e., "You can't talk about your wages."). But a rule that doesn't expressly restrict protected activity may also be illegal if (1) employees would reasonably construe the language to prohibit Section 7 activity, (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of Section 7 rights. 
• Thus, an employer may violate the NLRA by implementing overly broad policies. For example, it may be unlawful to implement a policy broadly prohibiting online communications that disparage the employer or supervisors or prohibiting any depiction of the company without employer permission.
• Of course, prohibiting conduct that’s clearly not protected under the NLRA isn’t a violation – an employer may properly restrict communications such as (non-exhaustive list of examples cited by the NLRB): (1) conversations about the employer’s proprietary information, (2) explicit sexual references, (3) criticism of race or religion, (4) obscenity, profanity, or egregiously inappropriate language, (5) references to illegal drugs, and (6) online sharing of confidential intellectual property.
• Sometimes, an employer’s policy provision might be overly broad standing alone, but the surrounding context may give it a more limited – and legal – meaning. For example, prohibiting employees from having “negative conversations” about managers may be overly broad if it contained no further clarification or examples. However, an employer probably can prohibit employees from making “statements that are detrimental to the company” when the prohibition is listed alongside examples of egregious misconduct (such as “sexual or racial harassment” and “sabotage”) that clearly aren’t protected under Section 7. The inquiry remains: when read in context, would employees reasonably construe the rule as restricting Section 7 activity?
• Although the inclusion of limiting or clarifying language may protect an employer’s otherwise overbroad policy, it’s probably wiser to just more carefully articulate the prohibited activity itself. (If you can’t say “don’t do stuff that annoys us,” but you may say, “don’t do stuff that annoys us, like sexually harassing other employees or stealing our trade secrets,” why not just eliminate the risk by saying “don’t sexually harass other employees or steal our trade secrets”?!)*
• An employer may want to simply include language in a social media policy expressly clarifying the policy doesn't restrict protected communications.
• Consider how you might re-phrase policy language to capture what your company really wants to restrict. For example, “defamation” is generally unlawful, but “disparagement” is broader and might include some online complaining that’s actually protected activity. Perhaps it would be safer for an employer to prohibit “defamatory comments about company supervisors” rather than “disparaging comments about company supervisors.”
• Remember, an employee’s online communications may be protected under other laws, too!

* Um, I hope this doesn’t really need a disclaimer, but I’m not literally suggesting you phrase your policies like this.

Hospital Workers Post Pics of Dying Man on Facebook: Highlights Need to Educate Employees on Proper Use of Social Media

So. Not. Cool.

Sixty-year-old William Wells arrived at St. Mary Medical Center's emergency room in Long Beach with more than a dozen stab wounds. According to the Los Angeles Times, his throat had been lacerated so severely, he was almost decapitated.

The first instinct of a handful of hospital workers there that day? Rather than rush to the aid of the dying man, they took pictures of him . . . and then, yes, they posted them on Facebook.

According to the Los Angeles Times news story, the hospital fired four staff members and disciplined three. At least two involved were nurses (but they apparently weren't fired).

This sad story highlights some of the challenges healthcare facilities face in today's social media frenzied culture. Hospitals and clinics struggle to balance their use of social media sites for marketing, recruiting, and advertising purposes against the need to protect patient privacy. But let me suggest that social media isn't really the problem -- the problem arises when employees make poor judgment calls when using these new online tools.  Of course, these employees should have known posting pictures of a dying man on Facebook was a bad idea.  But some privacy breaches and other workplace problems could be prevented if employers took a more concerted effort to identify their business needs and to educate employees about social media expectations.

Healthcare facilities often implement across-the-board bans of Facebook and other social networking sites at the workplace, assuming this kind of broad-brush approach will be the most effective. Managers may be forgetting that blocking workstation access to Facebook wouldn't have changed the St. Mary employees' access to their smartphone cameras and 3G mobile internet. Frankly, I don't think all-out bans of social media sites at the workplace are practical or effective.  Employers should take the time to create, communicate, and maintain a thoughtfully considered social media policy. Although some judgment calls seem intuitive, employers need to communicate their requirements and expectations to employees regarding employee use of social media.

School District Considers Social Media Policy for Teachers & Other Employees

Daniel Schwartz has an interesting post over at the Connecticut Employment Law Blog, pointing to a Connecticut school district considering a social media policy for its teachers:  School Board Considers Social Media Usage Policy for Teachers, Other Employees.

Schwartz also mentions a list of sample policies I've perused a number of times myself and have found to be a great resource:  the "Social Media Policies Database" made available over at the Compliance Building blog.  Of course, I encourage my readers to hearken back to my earlier cautions about relying on sample policies, as the public/private employer distinction raises another reason to thoughtfully and carefully approach sample policies. Remember that a school district, as a public employer, has First Amendment issues to worry about that private employers generally don't need to consider when drafting employment policies. Public employers may also want to consider, for example, Fourth Amendment implications of conducting online searches or monitoring use of technology, whether some level of due process might be owed before disciplining an employee, and so on.  Remember that a policy drafted for a private employer won't address First Amendment or other issues only relevant to a public employer . . . and a policy drafted for a public employer probably won't be a great fit for a private employer. Still, employers may find some helpful nuggets of information in the MANY samples out there!

Waitress Fired After Complaining on Facebook: "Legally Justified" Does Not Always Equal "Good PR"

The Huffington Post reports that Brixx Pizza fired a North Carolina waitress after she complained on Facebook about a customer's stingy tipping.

According to the Post, a couple sat at their table for three hours, and waitress Ashley Johnson, 22, said the customers kept her at work an hour after she should have been able to clock out. The couple rewarded her with a $5 tip.

A frustrated Johnson criticized them on her Facebook page -- calling the couple cheap and mentioning her employer by name.

Brixx got in touch with Johnson shortly thereafter, informing her that it was terminating her employment because her Facebook post violated company policy against disparaging customers and casting the restaurant in a negative light via social network sites.

Brixx posted the following official statement on its Facebook page discussion board:

Brixx Wood Fired Pizza appreciates your feedback! Please know we value our employees very much, which is why we are one of the few small restaurant companies that offers benefits. Brixx also values our customers and has a policy against making negative remarks about them.

As an employer, it is necessary to enforce policies for the benefit of all our hardworking employees and valued customers. Our policies ensure Brixx is an enjoyable place to both work AND dine. We welcome your comments, but please keep it clean!

As evidenced by the backlash on the company's Facebook page, employers have to consider not only legal implications of a Facebook firing, but also the practical implications -- including a potential backlash from the public that may be triggered by discipline for an employee's online activity. Although the company may be able to justify the termination from a legal perspective, it won't be easy to recover from the PR nightmare that could ensue.   

One user commented, in part, "You've gone & made Ashley Johnson famous. And your company INfamous." One particularly insightful comment aptly summarizes the point of my post:

Thanks to Becca for the tip on this story!

Potential Employer Liability for Employee Endorsements Under FTC Guidelines

You may recall my earlier post, "FTC to Require Bloggers to Disclose Payments or Freebies for Endorsements," discussing the first update since 1980 to the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising. That earlier post focused primarily on the guide's requirement that bloggers disclose any payments or in-kind donations (i.e., freebies) received in exchange for reviewing a product or service. But remember these new guidelines require disclosures of any "material connections" between endorsers and the advertised companies (i.e., connections between the endorser and endorsee). Material connections may arise as a result of some relationship other than just payment or free products directly in exchange for a positive review. For example, under the new guides, an employer could be liable for online communications by its employee if the employee touts a product or service offered by his employer, but fails to make clear he works for the company he's promoting or "endorsing."  The guidelines include the following example (Example 8 in the final rule):

An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.

It seems the new guides could potentially impose liability on employers for things their employees say online, even if the employer did not actually know those things were being said. The Commission seems to recognize that companies do not have control over all employee conduct. However, the FTC suggests that an employer may protect itself from liability if the employer has an appropriate policy governing social media participation by employees, clearly articulates that policy to employees, and consistently enforces that policy. The FTC explains:

With respect to Example 8 [laid out above], one commenter asserted that if the employer has instituted policies and practices concerning "social media participation" by its employees, and the employee fails to comply with such policies and practices, the employer should not be subject to liability. The Commission agrees that the establishment of appropriate procedures would warrant consideration in its decision as to whether law enforcement action would be an appropriate use of agency resources given the facts set forth in Example 8. Indeed, although the Commission has brought law enforcement actions against companies whose failure to establish or maintain appropriate internal procedures resulted in consumer injury, it is not aware of any instance in which an enforcement action was brought against a company for the actions of a single "rogue" employee who violated established company policy that adequately covered the conduct in question.

In sum, employees (as well as business owners or others with a material connection to a company) who use social media to endorse a product or service offered by their company should notify readers of their connection with the business they are talking about, and employers should implement or update social media policies to take into account the FTC guidelines.

New Article: Workplace Consequences of Electronic Exhibitionism and Voyeurism

William A. Herbert, New York State Public Employment Relations Board Deputy Chair, brought to my attention a recent article he authored, “Workplace Consequences of Electronic Exhibitionism and Voyeurism,” which may be downloaded at the Social Science Research Network. A number of authors and commentators have tackled various legal issues related to social media, privacy, and the workplace, but Herbert’s commentary offers a particularly insightful discussion with its special emphasis on the social psychological aspects of the world of Web 2.0. 

"Despite the general reluctance to bare all through old media, new communicative technologies are leading, if not encouraging, individuals to engage in an unprecedented degree of exhibitionism about their personal lives, thoughts and activities to a virtual worldwide audience. Frequently, such communications relate directly or indirectly to work or co-workers and have the potential for causing negative employment consequences." - William A. Herbert in "Workplace Consequences of Electronic Exhibitionism and Voyeurism"

For other posts related to social media and the workplace, click here.

Use of Social Media Before, During, & After Employment Relationship

Check out "Social Media Permeate the Employment Life Cycle" on The National Law Journal web site, discussing why and how employers should address the use of social media before, during, and after the employment relationship of their employees.

More on Employer Social Media Policies

The Delaware Employment Law Blog offers employers some good insight, outlining three initial steps on the road to creating an effective social media policy. In her December 4, 2009 post, Molly points out that it's important for employers to (1) familiarize the decision makers, (2) select key players, and (3) determine objectives.  (Check out her post for the broader discussion of these steps.)

I discussed related issues in October -- so if you're looking for more employer pre-drafting considerations (before drafting or updating social networking / social media / Web 2.0 policies), check out my October 27, 2009 post and my October 28, 2009 post.

Employer Social Networking Policies: Pre-Drafting Considerations, Part II

As noted yesterday, I plan to write a series of posts addressing social networking policies in the workplace. In yesterday's post, I discussed some things an employer may want to think about before drafting social networking policies -- including some things to keep in mind when starting with a sample policy.  I'll build upon that by offering a few considerations here for employers to ponder as they begin thinking about drafting, updating, or maintaining a social media policy.  This list is by no means exhaustive, but is meant to help employers focus on personalizing social networking policies (and hence, make them more effective).   

• Don’t be afraid to take care of some groundwork before involving an attorney, but focus these initial efforts on identifying the company’s business interests, needs, goals, and expectations as they relate to the policy. This will make your lawyer’s job much easier, and may save your company time and money.  For example, if you want to encourage social media use among your employees for marketing purposes, your policy will set the parameters within which your employees operate. The framework for such a policy will significantly differ from an employer whose primary goal in establishing a policy is something else (such as the protection of confidential information).
• Brainstorm how the policy should address both: (1) online activity which occurs on company time or using company resources (i.e., blogging at work, Facebooking on company laptops, etc.), and (2) online activity, regardless of when or where, which may have implications for your business (i.e., complaining about work on personal blog from personal computer after-hours that discloses trade secrets).
• Thoughtfully consider how far the restrictions should go. Keep in mind practical considerations. Not only do many studies suggest it’s not good for morale or recruiting to ban all social networking sites or Web 2.0, an all-out ban will be difficult to enforce. Take a realistic approach, and bear in mind ad-hoc policing could easily lead to selective enforcement issues down the road.
• How do you monitor employee technology use? Federal and state privacy laws should shape your policy.
• Consider quirks of your particular workplace technology that might present special considerations. For example: Do employees have company-issued web-enabled cell phones? Do you want policies addressing text messaging? Pagers? Off-duty conduct on company laptop during non-work hours?

Employer Social Networking Policies: Pre-Drafting Considerations & Dangers of Sample Policies

Employers often want to know more about permissible or effective social networking policies for their employees. Of course, there's no such thing as a “one size fits all” social media policy for employers, but I think readers might find it helpful if we took some time to address important considerations involved in drafting, updating, or maintaining a policy addressing employees’ online activities. With that goal in mind, I’m going to begin a series of entries specifically tackling some of those issues.

Pre-Drafting Considerations
These issues arise even before the policy drafting begins -- so that's where we'll start.  The planning stage of an employer’s social networking policy defines the later effectiveness of the policy. It may be wise for information technology personnel, human resources professionals, other internal company decisionmakers, and legal counsel to sit down together to determine the employer’s business interests, needs, goals, and expectations under the yet-to-be-drafted policy.

Sample Policies or Model Guidelines:  Don't Forget to Assess the Company's Unique Needs
It’s important to keep in mind that although model policies or sample guidelines may offer some helpful “nuggets,” those policies derive from unique business considerations – which may or may not align with the business interests of other companies. For example, many employers look to the IBM Social Computing Guidelines – one of the first publicly available social media policies. While I do think IBM’s policies are lovely, all the attention given to IBM’s guidelines (and model policies in general) easily distracts employers and discourages them from carefully analyzing their own unique objectives.

As a technology company, IBM has been motivated to actively encourage employee use of social networking. Other employers probably do not have the same motivations. More than 10 years ago, when most employers were trying to limit employees’ online activity, IBM was encouraging its employees to use, learn, and participate in online activity; the company continues to advocate its employees’ participation in Web 2.0. The overarching business interests of a technology company like IBM (i.e., promoting use of online media for marketing and business reasons) may conflict with the overarching business interests of other employers (i.e., perhaps a greater need to protect proprietary business information).

In sum, if human resources professionals at Acme, Inc. look to a sample policy for drafting guidance, they should always bear in mind that the fundamental principles underlying IBM’s (or anyone else’s) guidelines may not best serve the interests of Acme. At the risk of sounding very “lawyer,” I now point out the obvious: social networking policies, as with most employment policies, require individualized attention and should be specifically tailored to the needs of each employer.

Sample Policies or Model Guidelines:  Quality Control
The other problem with examples found online is quality control. Googling “social networking policies” may give an internet user a list of results, but it generally doesn’t disclose things like: who drafted the samples, the employer’s jurisdiction and applicable law, or the business interests driving the policy. In other words, the policy could have been drafted by an idiot, it might address too much or too little, and Company A may be focused on helping its sales team effectively use Facebook as a marketing tool while Company B just wants to keep its associates from divulging confidential financial information on MySpace.

Without properly assessing the business interests and concerns the employer wants or expects its social media policy to address, the resulting policy will be of little value to the employer. Before drafting any guidelines, employers should focus on the fundamental framework for and guiding principles behind their anticipated policies.

Coming Soon to a Blog Near You:  Practice Pointers
Stay tuned for some practice pointers on this subject, which I hope to post tomorrow.

Considerations for Employers Before Disciplining or Discharging Employees for Online Social Networking Activity

Today, I spoke at a seminar focused on "Employee Documentation and Discharge in Iowa and Nebraska," along with two shareholders in the Dickinson, Mackaman, Tyler, & Hagen employment law practice group, Ann Holden Kendell and Rebecca Boyd Dublinske. In addition to some general topics, I covered a segment focused on adverse employment action in response to employees’ use of social networking web sites. The attendees seemed interested in the topic, so I’ll post some tidbits from that presentation here.

(Note that in an earlier post, I discussed risks employers might face in accessing online profiles of potential employees during the recruiting process. Some of those risks also arise in the context of addressing the issue of online activity of current employees.)

We all know Web 2.0 has dramatically changed our understanding of communication, interaction, and technology. As social networking sites become more and more popular, employers realize more and more employees use these sites. Many employees comment about their work, their employer, or their co-workers online. Sometimes these comments can have serious repercussions for the employer. What an employee does online may:

• Hurt the employer’s reputation, or disparage the company or its officers;
• Disclose proprietary information (maybe even inadvertently);
• Result in vicarious liability for the employer (for example, supervisor harassment via Facebook); or
• Otherwise violate company policies.

The general rule in most U.S. jurisdictions is at-will employment – which allows private sector employers to discipline or fire at-will employees for any or no reason (such as violation of company policy based on online activity). Some exceptions to the doctrine exist, however, and might limit an employer’s ability to respond to employee activity online. Some things to consider before reacting to employees’ use of social networking websites:

• How employer accesses the information. Depending on the circumstances, how an employer accessed the offending information might result in liability for the employer, or perhaps undermine the investigation that led to adverse action in the first place. For example, I’ve mentioned that accessing an online profile or social networking group when the user has taken advantage of certain privacy settings might result in an invasion of privacy claim under either state or federal law.

• Employment or Union Agreements. In other words, make sure it’s really at-will employment. Employers should be sure discipline or termination wouldn’t be violating the terms of any agreements that are in place.

• Discrimination. Similar to concerns in the context of hiring, a social network profile often reveals an employee’s protected status(es). People document their religious beliefs, age, sexual orientation (protected in some states, including Iowa!), and on and on . . . Employers might access information they wouldn’t otherwise know about. And once they see it, there’s no undoing it. Discipline taken after the employer becomes aware of a protected status might support an employee’s later claim that improper considerations – rather than performance – influenced the decision to discipline. Employers should also consider whether a particular disciplinary action might suggest a selective enforcement issue.

• Retaliation. Could the content of an online profile be considered protected activity such that discipline would be against public policy, and hence, illegal? If an employee seems to be complaining about work or an employer, consider whether those complaints might be protected.

• National Labor Relations Act. The NLRA may protect online commentary if, for example, the content could be considered an effort to organize a union, or somehow related to a labor dispute. Employers should consider whether discipline might be considered an unfair labor practice.

• Off-Duty Conduct Statutes or “Lifestyle Discrimination” Statutes. Some states protect an employee’s lawful, off-duty activities. Employers with workers in those states could be pretty limited in how they may react to employees’ online activity.

• First Amendment. Public employers must consider First Amendment implications of disciplining employees based on online speech.

• Inaccurate Information. Although not really a legal consideration, employers should keep in mind that online profiles often contain inaccurate or misleading information. Sarcastic comments or inside jokes may easily be taken out of context or misunderstood. Employees may also have little control over some content in their profiles (i.e., someone else may post a comment on the employee’s Facebook “wall” or photos of the employee).

• Other Practical Implications. For example, consider the public relations issues arising as a result of a “Facebook firing.” Terminations resulting from online activity remain relatively newsworthy, and may garner attention a company would rather avoid by imposing less severe discipline.

This list isn’t all-inclusive, and new issues come up every day. Still, employers would be wise to check with legal counsel before disciplining or discharging an employee for the employee’s conduct online.

Risky (Recruitment) Business? Potential Risks for Employers in Using Social Network Profiles for Candidate Screening

Today, I’m presenting on Web 2.0, social networking, and legal implications in employment at Dickinson, Mackaman, Tyler, & Hagen’s 2009 Employment Law Client Seminar in West Des Moines. As a portion of my segment, I’ll be going over a number of risks employers face when they use social networking sites as part of their hiring or screening process. Potential risks include:

• Incorrect information or information taken out of context. Information in a person’s online profile or “wall” space on Facebook, for example, isn’t always accurate. Neither are assumptions about that information. Keep in mind users sometimes have no control over content others post to their site. Of course, sarcastic comments or inside jokes could easily be taken out of context and misunderstood.

• Reveals information about a candidates’ protected class. Social network profiles include all kinds of protected information: people often list religious beliefs, age, race, gender, sexual orientation (protected in Iowa!), military status, and so on in profile information, for example. It’s risky for employers to get access to this information they wouldn’t otherwise ask about during the hiring process – and information upon which they can’t base hiring decisions. Once an employer sees this stuff, they can’t “un-see” it! Employers may find themselves having to prove a decision to refuse a candidate wasn’t influenced by the information online.

• Invasion of privacy. Depending on the circumstances, checking online profiles could lead to an invasion of privacy claim under various federal or state laws.

• Off-duty conduct discrimination. Some states have laws prohibiting discrimination based on off-duty conduct. If an employer has employees in states with such laws, it could really limit the employer’s ability to use social networking sites as part of the screening process.

• Fair credit reporting laws. If employers use an outside agency to conduct background checks on candidates, they may need to follow consent and disclosure requirements of fair credit reporting laws. The federal Fair Credit Reporting Act is one such law, and states sometimes have similar statutes.

Of course, some might argue employers have a duty to check public profiles available through social networking sites that are freely accessible to minimize risks of later negligent hiring claims. Employers do have a duty to consider all reasonably available information in making hiring decisions, and failure to check online profiles could arguably support a future negligent hiring claim.

Employers should carefully weigh risks and benefits of incorporating social networking checks into its screening process. If employers plan to use social networks as part of their vetting of candidates, they should consider working with counsel in developing an internal policy to govern the process.