The law has a difficult time keeping up with the pace of Facebook, Twitter and other fast-evolving Internet platforms.
"By the time the law figures out email, nobody's using email anymore," said Renee Mattei Myers, a labor and employment attorney with Eckert Seamans Cherin & Mellott in Harrisburg.
On Tuesday, Myers discussed the issue of using social media in the workplace with the York County Chapter of the Society for Human Resource Management.
Here are some of the takeaway points, which included regulating an employee's Internet use, protected speech on social media and the pros and cons of using the web to screen and weed out job applicants.
What is social media?
A general term encompassing user-generated content that is designed to be disseminated through means of virtual and social interaction with others.
What are employers doing with social media?
Fifty percent of all workplaces ban all access to sites like Facebook and Twitter.
Other businesses have their own social media presences.
Other times, social media can be used to defend against employment claims.
"For example, if someone says they're disabled, and you go on Facebook and see pictures of them doing all sorts of athletic activity," Myers said.
What is the downside of using social media to screen job applicants?
You could pull up protected or inaccurate information about someone.
"Maybe there's more than one John Smith on the Internet," she said, "and maybe you have the wrong individual."
Protected information includes things like race or a disability.
"Say they disclose some health issue you might otherwise not have known about," Myers said. "Now you're questioning whether you hire this person . . . if healthcare rates will go up. Is a person going to miss a lot of work because of this? And what have you done. You've just discriminated against someone."
I hear some employers are asking for passwords to private emails and Facebook accounts. Is that true?
"I'm not sure there are a whole lot of employers actually doing this," Myers said. "I think there were a handful and then the media got a hold of it, and it became a huge issue."
Maryland is the first state to ban the practice, she said, adding that there is a push in the legislature to make this illegal.
What is the disadvantage to actively policing employee Internet use?
It can create a unpleasant factor of "POS" -- "parent over shoulder," Myers said.
"We want our employees to be productive," she added. "We don't want them to think they can't even go to the bathroom because they're being watched 24/7."
If I want to talk about my employer on Facebook, what constitutes protected speech? What types of things can I say?
The National Labor Relations Act protects employees who talk around the proverbial "water cooler" with co-workers, Myers said.
Employees possess the right to discuss wages, working conditions and unionization.
"One-sided rants," she said, that include profanity, scandalous, derogatory or threatening remarks are not protected.
What should I consider when crafting a social media policy for my business?
Don't issue a blanket policy banning all social media speech about the business, Myers said.
Do craft a policy limiting use during work hours and banning false statements, circulation of proprietary information, and profanity related to management or co-workers, she added.
Be aware: "What you do on social media can otherwise violate other policies," Myers said.
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