If you work in an office, the chances are that you’ve used social media at work before. Hopefully, you keep personal use of social media communities like Facebook and Twitter to a minimum during work hours. New reports have found that more than half of employers in the United States view social media use as so harmful to productivity that they’ve banned it altogether. Companies that have not taken this drastic step, however, have run in to a variety of problems related to social media use, which has led to embarrassment, terminations, and even costly lawsuits.

Despite the growing popularity of social media communities, legal precedent continues to lag behind, meaning the law has not yet been written for many employment problems related to social media. To help parse the difficult questions, we talked with California employment lawyer Laura Maechtlen about employers who use social media to help with hiring decisions, employees caught lying about sick days, and whether the courts will regulate social media use among lawyers. Take a look:

GJEL: How common is it for employers to check social media before making hiring decisions?

Laura Maechtlen: We see anecdotal evidence of this, but I haven’t actually seen statistics. It’s clear, though, that many people do it. Fortune 500 companies really do utilize social media as part of their hiring process, sometimes as part of procedure and sometimes not.

GJEL: Is this a change in the last 5 years?

LM: Yeah. It has had such an amazing rise in popularity. If you look at the growth numbers, for Twitter and Facebook in their number of employees and users, it is staggering. It literally doubles in a year’s time, which is just amazing. So when you think of things going from the fringe ideas to having them go to a mass consumption idea, then suddenly employers start to use these forums more often in the workplace.

GJEL: Should employers be able to terminate employees based on information they learn from social media?

LM: Absolutely. There was an interesting issue that arose a while back where an employee had been offered a position at Cisco. The employee tweeted that he just got a job and had to weigh the utility of a fat paycheck versus the cost of a commute. Ultimately the job offer was rescinded. I have had some clients that have issues arise and stories being published in the media where employees will call into work or say they need to be absent, and their employers will later see a post on their Facebook page showing that they are not sick and are actually skiing or in Hawaii. In one case where someone was supposed to be sick, he put up a photo of himself at a Halloween party in a tutu drinking beer.

This is where privacy issues come in to play. Where is the barrier? There has been content put up on websites that can be considered harassing or bullying. If it can make people feel uncomfortable, at some point the employer has a responsibility to forward so that employees are not harassed by their co workers.

GJEL: Do you think the courts would ever prevent companies from searching social media?

LM: My view on that is that the cat is already out of the bag so much that it would be hard to un-ring the bell. It is such an element of our current way of interacting with each other. It’s almost like saying you can’t use anything you heard over the telephone. In 20 years this stuff will be so commonplace that there are going to have to be more parameters to define what employers can do. When I first started practicing as an employment lawyer, it was harder for companies to get background information about potential employees. Now it has become a lot more involved in terms of what you can find online about people.

GJEL: How does the increase in Facebook privacy settings impact the question of whether companies should investigate social media?

LM: There have been some arguments in some cases about whether or not people should be able to discover information that is password protected or set to some sort of privacy barrier. It might end up being fact specific in these circumstances. If you are someone who has 5,000 friends, even if your Facebook account is password protected, if you have 5,000 people reading your information, it seems difficult to believe that it should be considered private. In terms of employers accessing things, they have to be very careful not to access social media pages by deception. If you are an employer, for example, and notice that someone is friends with a potential employee and use that access, that can cause some serious issues.

GJEL: In an era of social marketing, can any employee who uses social media be considered a marketing representative?

LM: The law is unclear in that regard. There are some concerns about whether employees are making affirmative statements about their company’s product and services. There can be serious ramifications, for example, with the FCC. There was some discussion about this with a 50 Cent tweet that affected stock prices of a product he had invested in. There are people out in the world that will follow employees to see if they can read between the lines about what might be happening for a company in the near future. It is a much more public way of sending information. Even if you are not legally considered a marketer, if you are representing yourself as an employee and talking about your work place, you could indirectly be deemed a marketer.

GJEL: Where is the line between personal and professional? Put another way, are there uses of social media that companies can’t regulate, even if it happens on company grounds?

LM: There was a recent case recently about email in which an employee had emailed with his attorney using company networking resources. The employer had a very strong policy about the email system being just for business. The employer later tried to use certain emails at trial that the employee said were privileged. The court held recently that the information could be used and that they could not rely on the privilege because the email was written on their system.

Did the employee have any expectation of privacy without it being monitored by the employer? Is what they were doing on the company’s time or on their own time? If what they are doing on social media is not otherwise prohibited, and it is lawful activity, then you might be hard pressed as an employer to argue that the conduct is not private or that you should not be able to do it. If it is unlawful or gets in the way of company business, then an employer could step in.

GJEL: Is everything that is posted online discoverable? What are the limits?

LM: That is being litigated in various courts right now. There are many legal arguments you can make. It is usually ending up being based on the facts of the particular case and what type of case it is. A lot of limits are being placed on relevancy. All of the print outs for a Facebook page would not be relevant for most lawsuits, for example. Courts will often limit the discoverable items to items about the employer or the employee’s emotional state. Other cases about privacy rights have found that the employer did not have a good enough privacy policy to claim that they could look at what was done on work time.

GJEL: What are some of the potential drawbacks for employers who don’t look at social media? Could they kick themselves later for not looking?

LM: One of the benefits of using social media for hiring purposes is that it is fast and cost effective. You can reach people who are passive candidates, who aren’t good at selling themselves. You can go out and find a lot about them, you can see their speaking engagements etc for passive candidates. It also provides a nice platform other than a resume, allowing a candidate to showcase qualifications and interests they have. If they are applying to something about networking and their Twitter account shows that they are up on issues that your company might be facing, that can be very attractive to potential employers. You can avoid bad hiring claims with social media if you can find out something immediately about somebody that you would not have found out otherwise.

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