Every day, most of us create permanent records of our lives and the things we do through our Internet use, emails, texts, tweets, blogs, and similar technology. Information intended for friends and family can sometimes be disseminated more widely than expected or planned. Unless one avoids these technologies altogether -- a difficult feat in today's society -- one can no longer be assured that a private life is truly private. Further complicating the issue is the use of these technologies in the workplace. The line between our public and private selves continues to blur. Current legislation is aimed at protecting privacy rights of employees in balance with employers' concerns about the use of social media during work hours and, in some cases, with the use of employer-owned devices. Legal issues can quickly become complex and there is not sufficient practical guidance to help employers navigate an increasingly challenging workplace dilemma. One of the current challenges in the workplace is in respect to communication and the use of social media. Since it can be a significant source of conflict, both employers and employees have rights and responsibilities to ensure that it enhances an organization's climate and productivity and not be detrimental to them.
The use of social media is prolific in today's society. As of December 2011, Facebook had more than 800 million active users. Approximately 200 million users are in the U.S., representing two-thirds of the population. Twitter has approximately 300 million users worldwide (Mello, 2012, p. 165). Social media is not just for personal use. Organizations are increasingly using social media to establish and maintain a presence among customers and constituents. More than a quarter of the organizations with five hundred or more employees report they have developed some sort of social networking presence as a business tool (Mello, p. 166).
In the 2008 presidential election campaign, Democrats and then-candidate Barack Obama used online and social media tools effectively, even when much of the general public was not using them. The 2012 election was a different story; social media tools had become an essential tool for campaigns at the local, state and federal levels. Chris McCroskey, co-founder of the website TweetCongress, which collects Twitter feeds from members of Congress, points out, "Now it [social media] is part of the national consciousness" (Dorsch, 2012).
Social media is gaining popularity in private sector businesses as well. Sharon Allen of the global consulting firm Deloitte LLP noted, "Quite a few organizations have embraced social media and are leveraging it to reach new and existing customers, identify and recruit talent, and build overall brand awareness" (Nancherla, 2009, p. 19). For many organizations, a website alone is insufficient. The public demands more, and organizations have responded by hiring social media specialists to manage their virtual presence. Organizations can let others know what they are doing, and they can likewise monitor the activities of other organizations, competitors, lawmakers, and individuals -- including employees.
One aspect of communication where issues with social media surface is in the "face-saving arena" (Folger, Poole and Stutman). Face-saving messages are concerned with the image a speaker tries to maintain when interacting with others. For previous generations, there was a clear understanding of the line between one's "business face" and one's "personal face." Effective business communication depended upon individuals knowing and respecting one another's roles. While it is not to say that conflict did not exist in the workplace, there were socially-accepted guidelines that governed communication through speech and behavior.
Today, social media makes communication possible in a much less restricted environment. Because individuals do not have to look each other in the eye, they may be bolder with respect to statements they make. It can be easier to make derogatory remarks or harass an individual, for example. The fact that these communications are more easily put forth does not make them any less threatening, nor less deserving of attention by those in authority. Communication through social media can cause considerable conflict in the workplace, even without malicious intent. A comment may seem like a joke to one person, but be construed as offensive to someone else. face-to-face, the same comment might not even seem as threatening. Sometimes communications delivered through social media gain a wider audience than originally intended. A comment made to one person might not seem offensive or threatening, but when it is made for others to witness, the communication may be taken to another level. Someone may feel s/he has lost face in front of colleagues, which can then lead to conflict in the physical workplace.
Thus, there are legitimate reasons why employers engage in monitoring their employees' social media communications. In the event of any kind of employee misconduct (such as insider trading, for example), the employer can be held liable if s/he knew of the conduct and did nothing about it. The employer can also be held liable if s/he was unaware but "should have known" about the conduct. Employers can also be held liable in sexual harassment suits because of the transmission of provocative or sexually explicit emails or display of materials accessed through pornographic websites (Mello, 2012, p. 168).
As discussed, employers are more often using social media as a recruiting tool. Human resources (HR) professionals caution that employers should use social media wisely, or risk facing law suits down the road. For example, recruiters may post a job opening in LinkedIn, and they may also want to use targeted recruiting with LinkedIn Groups that are more likely to be populated by individuals who are underrepresented in the company. It is a good move to increase diversity when that is one of the employers' objectives. However, employers cannot set aside a position for a person of a particular equal opportunity group (Segal, 2012) and ensure that postings target a wide demographic. Failure to do so could result in charges of discrimination in recruiting practices.
Employers have the right to look at candidates' public social media profiles, but should use caution in doing so. Studies show, for example, that employers may be less likely to interview individuals whose names appear to be associated with racial or ethnic groups. As pointed out by Folger, Poole, and Stutman, "When parties perceive another party as a member of a group rather than as an individual, they may act more forcefully or aggressively toward them." Bias is seldom about an individual; when someone identifies with a group, s/he could be, rightly or wrongly, categorized by an employer. Again, social media can be the catalyst for conflict in the workplace if individuals are characterized or targeted with it.
It is suggested that employers do not review candidates' social media profiles at all in deciding who to interview. The social media review should be conducted by the HR professional as part of the background check of a finalist (Segal, 2012). Employers do not have the right, however, to demand access to private social media, such as a Facebook page that has access restricted to "friends" granted by the owner of the page. In Maryland, the General Assembly passed a law in April 2012 that took effect in October. The law prohibits an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service. At least ten other states are in the process of enacting similar legislation (Poerio and Johnson, 2012, p. 63).
Employers are not the only ones who have responsibilities with respect to social media. Employees should be cognizant of the image they project and they should draw the line, to the extent possible, between personal and public. For example, one employer reviewed the public Facebook page of a potential executive who was wearing nothing but a thong. The man was entitled to do what he liked on his own time, of course, but he exercised extremely poor judgment by posting the picture on his page (Segal, 2012). It cost him the job.
Employees who want to endorse an employer's products or services should make their status clear, even if the social media use is personal and not professional. If someone does not make affiliation with one's employer known, the Federal Trade Commission may view it as a misleading endorsement. An employee posting personal views should make clear s/he is not speaking for the employer but expressing personal opinion. In such a case, the employer should not be mentioned by name. To do so would create a link to the employer, which is the opposite of the intent of the disclaimer (Segal, 2012).
As chronicled by Hearing and Ussery in a two part series on social media in the workplace for the Florida Bar Journal, there have already been numerous cases in the courts in which employers and employees (or, often, former employees) do battle with respect to First Amendment rights. Cases have been won by both sides. Individuals are entitled to free speech; the National Labor Relations Board (NLRB) protects the…