SI Review: Oct. 17, 2013

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Benefit of Counsel: Legally Acceptable

Legally Acceptable

Elements to consider when crafting a social media strategy

By Joel A. Klarreich and Jason B. Klimpl

While social media outlets may be excellent platforms for staffing professionals to network and source candidates, myriad problems may result from improper or unlawful use of a company’s name, reputation or confidential information while using such social media. Here are a few.

Company identity. An employee’s use of a staffing firm’s name or a company e-mail address when using social media may lead others to believe he or she is speaking or writing on behalf of the staffing firm. Direct employees to use a disclaimer explicitly stating that his or her views are not those of the staffing company. The policy may also state that employees are not permitted to act or speak as a representative of the firm while using social media, unless given prior permission. Finally, employees must be prohibited from misrepresenting their identities while engaged in firm business.

Confidentiality and IP. A social media policy should address employees’ online use and dissemination of a staffing firm’s confidential and proprietary information, including job candidates and clients, etc. The policy should clearly define what information is confidential and state how employees may or may not use such information.

Performance feedback. Consider prohibiting employees from using social media to comment on or display information concerning the work performance of other employees without prior company consent. For example, in the event of a discrimination claim where a staffing company terminated a worker for poor performance, it would be harmful to the company if one of its managers had “recommended” the worker on LinkedIn.

Privacy rights. Everyone must honor the privacy rights of other employees. Require them to seek permission from co-workers before writing or displaying information that might be considered a breach of privacy or confidentiality. Further, the policy should prohibit employees (including supervisors) from gaining or attempting to gain unauthorized or unlawful access to another employee’s private and secure social media identity.

Right to monitor. Staffing companies should remind employees that they have no expectation of privacy with respect to any files, data, or activities stored on, created using, or sent or received with the employer’s electronic communications equipment.

Discrimination. The social media policy should also prohibit employees from using any information derived from an applicant’s or employee’s use of social media to unlawfully discriminate against that individual on the basis of a protected class.

NLRA compliance. The National Labor Relations Board, the federal agency charged with enforcing the National Labor Relations Act, has struck down policies that intrude upon employees’ rights to engage in protected concerted activity for mutual aid and protection, such as openly discussing wages, hours, safety concerns, and other terms and conditions of employment. So carefully review your policies to ensure provisions may not be construed to impermissibly limit employees’ rights to openly discuss the terms and conditions of their employment.

Common sense. Any policy should appeal to employees’ common sense and sound judgment. It should remind employees that anything they write or display may be used to form opinions about the staffing company and may permanently remain in the public domain. In this regard, subject to the NLRA, the policy should urge employees to use common sense and utilize social media in a knowledgeable, respectful, and professional manner.

Related policies. Remind employees that the firm’s existing policies — such as confidentially, equal employment opportunity and technology usage and related privacy policies — remain in effect.

A well-crafted social media policy may be a useful tool for staffing employers to prevent the dissemination of its confidential information, the improper use of their intellectual property and a host of other problems stemming from employees’ use of social media. Consequently, staffing companies should consider whether implementing such a policy would further their business objectives and fit within their company culture.

It’s important to develop solid social media policies to ensure proper usage, write JOEL A. KLARREICH and JASON B. KLIMPL, attorneys with Tannenbaum Helpern Syracuse & Hirschtritt LLP.

Joel A. Klarreich and Jason B. Klimpl are attorneys with law firm Tannenbaum, Helpern, Syracuse & Hirschtritt LLP. 

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