Company rules on social media can lead to lawsuits

Social media research: playing with fire?

One controversial use of social media in the workplace is whenemployers do so to gather information about potential employees.

Over the past several years, Google has become a tool for gainingpersonal knowledge of others. A quick search of a name can turn upsocial media profiles, criminal histories, affiliations and otherpersonal information.

But employment attorney Rich Meneghello believes employers shouldbe cautious about how they use the information.

"By actively searching someone you are giving yourselfinformation that otherwise wouldn't have been provided to you," hesaid. "Even if the information you find isn't the reason you didn'thire them, the person could make a case that it was."

Meneghello suggests checking only a person's information onLinked In, a social media website dedicated to building businessrelationships. He recommends avoiding websites like Facebook andMySpace unless the subject grants permission for it to be viewed.

At a climactic point in the 2010 film "The Social Network," theMark Zuckerberg character remarks, "We lived on farms. We lived incities. And now we live on the Internet."

As social media has increasingly gained popularity among realestate brokers in particular, local firms are moving quickly tocraft policies for appropriate professional use. But while localemployment lawyers agree that companies should have written rules onhow social media is used, they also say excessively strict rules canlead to legal battles alleging wrongful termination and FirstAmendment violations.

On Monday, in fact, the National Labor Relations Board approved asettlement in favor of Dawnmarie Souza, formerly an employee ofAmerican Medical Response of Connecticut, an ambulance company.Souza was fired after posting an expletive-laden Facebook commentcritical of her employer and her supervisor, on her personalcomputer after work hours.

The financial terms of the settlement were not disclosed;however, the ruling was a vote in favor of protecting speech, evenwhen it's critical of an employer, on social media websites.

"Social media is new, and everyone is still getting used to it,but it's real and it's not going away," said Rich Meneghello, anemployment lawyer and managing partner of the Portland office ofFisher & Phillips. "The lines will be drawn and the laws will befleshed out, but everything is so fluid right now that these typesof legal battles are rife with danger for both sides."

Meneghello suggests crafting a policy around respectfulness andpositive portrayal of the company, with mention of social mediawhenever pertinent. This gives a written policy to point to in casesomething happens, he said, but doesn't restrict an employee's rightto free speech.

If a policy limits an employee's ability to vent, it may violatea portion of the National Labor Relations Act, which protectsconcerted activity. According to the act, "Employees shall have theright to self-organization, to form, join, or assist labororganizations, to bargain collectively through representatives oftheir own choosing, and to engage in other concerted activities forthe purpose of collective bargaining or other mutual aid orprotection."

Basically, two or more employees are allowed to act together toimprove their terms or conditions of employment, even they do so viacomplaints.

"If you push your policy too far you're going to run into this,"Meneghello said. "It's a hidden land mine."

Last year, Bluestone & Hockley Real Estate Services updated itscomputer policy to include references to social media, but left outany reference to what takes place on personal computers after workhours. The policy strictly states that work computers should be usedonly for work-related activities and not for visiting websites likeFacebook, YouTube or MySpace.

The firm also has a policy that states harassment will not betolerated, even if it is via an anonymous post on a forum or socialmedia site.

New employees must acknowledge in writing that they have read theentire company policy.

"We worked hard to update this with the most current Internet-related issues just last year," said Cliff Hockley, a principalbroker with the firm. "What we realized was that you can controlwhat happens at work, but what a person does in their off time ismuch harder to make policies around."

Jim Mark, CEO of Melvin Mark Cos., said a clause in the firm'spolicy addresses disrespect and rudeness, but not social mediaspecifically.

"It's something we're looking into, but we view issues more froma personal behavior and personal conduct matter, and try to leavethe social media aspect out of it," he said.

Meneghello also said that even if an employer believes it hasample reason to fire someone for an offensive comment posted onFacebook, such action may not be worth potential trouble.

"The lines haven't been drawn, so going into a case the outcomeis in no way predetermined," he said. "I always ask an employer: Whyput yourself out there in the forefront of an issue that is sopopular right now?"

He cited the first legal case arising from a Facebook comment: Anemployee at Brixx Pizza in North Carolina last year won a suitagainst the pizza business after she was fired for posting a commentabout a small tip she had received.

"If you hear someone say Brixx Pizza, you think about the legalcase, not their pizza," he said. "That's not good publicity."