Author Archives: Carrie Pixler

Carrie Pixler

About Carrie Pixler

Carrie Pixler is an associate with Fennemore Craig and a member of the firm’s litigation section. She practices in the areas of labor and employment, appeals and professional responsibility. She can be reached at cpixler@fclaw.com.

Using Social Media Content to Inform Employment Decisions

Social Media Series: Using Social Media Content to Inform Employment Decisions

This article is part of an ongoing series about social media in the workplace. We’re interested in your feedback/questions, so please comment and the authors may address your issue in their next article.


Assuming that employers properly obtain personal information about an applicant from social media sites, employers still need to be careful to avoid certain risks associated with using such information to make employment decisions. While it may seem a great idea to use information obtained through social media to help make hiring decisions, it may not always be wise to do so.  In certain instances, using information provided by Facebook, LinkedIn, Twitter and other social media sites may expose employers to liability for such claims as discrimination and negligent retention and hiring.

In addition, if the employer learns from Facebook information about an applicant’s protected characteristics that is not apparent from the application or interview, such as the fact that the applicant is pregnant or disabled or has a father with cancer, and the employer does not hire that applicant, the employer may be exposed to liability.  Such characteristics about an individual generally are protected by state and federal discrimination laws.

If the employer used this information to make a decision not to hire the applicant, the employer likely is liable for discrimination. Even if the employer did not use this information in the hiring decision, the fact that the employer obtained this information prior to making a determination may cause the applicant to believe that discrimination has occurred and file a charge with the Equal Employment Opportunity Commission.

On the other hand, there may be instances where an employer’s use of such information is appropriate.  For example, if a private employer discovers that an applicant has posted disparaging remarks about the employer, its clients or other individuals, the employer generally may use that information in deciding whether to hire the individual. Such disparaging remarks are likely not protected speech in this instance and, indeed, may be an indicator of the individual’s ability to be successful at the particular place of employment.

An interesting conundrum may arise in other situations, such as where an employer learns of information about an applicant that suggests a negative tendency, yet the employer still hires the person. For example, if a private school discovers that a teacher applicant was bragging online about partying with his students, and the school still hired the applicant, the school may expose itself to a possible negligent hiring claim down the road if the individual engages in misconduct with his students.

The message is that there is no single bright line rule for using information from social media sites to make hiring decisions about prospective employees.  The answer largely depends on such factors as the type of employer involved and the type of information at issue.  To facilitate proper use of such information, an employer should have a social media policy in place and should train its managers on the policy.

Lori Higuera, a director with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

[stextbox id="grey"]More than ever, employers need guidance about social media in and around their workplaces. We’d like to hear from you about your issues and questions related to social media and your business. Please post a comment below this story and we may address your issue in the next edition of our Social Media Series.[/stextbox]

 

Social Media Policy

Social Media Series: Employers Should Consider Creating Their Own Social Media Policy

 

This article is part of an on-going, social media series.


According to a recent ethics and workplace survey by Deloitte, social networking sites are a part of everyday life for employees, with 66 percent acknowledging that they visit sites such as Facebook, MySpace, LinkedIn, Plaxo, Twitter, YouTube, and Flickr at least once a week. Although an employee’s use of these sites may appear on its face to be a personal activity in which the employer should not interfere, the reality is that an employee’s private use of such sites may have consequences that impact their employer.

Is an employee who engages in social networking for personal reasons at work being productive for her employer? Is an employee’s personal rant about his employer on his Facebook page placing his employer’s public reputation at risk?  Is an employee’s personal post on a social media site regarding a client business meeting placing her employer at risk for disclosure of confidential, proprietary or trade secret information?

Notwithstanding the expanding gray area between an employee’s private use of social networking sites and an employer’s professional consequences, only 22 percent of employers have a policy in place to control their employees’ use of social media.

So what should employers do? While there is no bulletproof protection for employers, they can help to avoid or mitigate some legal and ethical consequences by establishing an appropriate social media policy that fits their unique culture. Employers would certainly be wise not to simply copy a social media policy off the Internet. The policy for a small employer may be different than that of a large employer. The policy for a school may be different than that for a for-profit business. For example, a policy for a school may prohibit staff is from “friending” students, while a for-profit business may encourage staff to engage with clients and potential clients through social media as a form of professional networking — albeit with guidelines concerning proprietary and confidential information in place. On a general level, almost all employers should consider the same common factors when developing a policy.

·      First, may the organization’s employees engage in social media for personal reasons at work and, if so, are there any limits and how will the employer enforce such restrictions?

·      Second, given that an employee can tarnish an employer’s positive public reputation through social media activity, the employer should consider guidelines for employees’ use of social networking sites. Similarly, the policy should address whether an employee is permitted to identify himself as a representative of the organization when expressing his personal opinions about the company, and whether the employee should include a disclaimer in his personal blogs and posts that the opinions expressed are solely his own.

·      Third, given the liability that can result from an employee’s unscrupulous use of social media, the employer should remind employees of all other policies that may be implicated by one’s online activity, such as the anti-harassment policy, anti-discrimination policy and the confidentiality policy.

Underlying any social media rules for the office should be a policy about the employer’s intention to monitor employees’ use of electronic communications at work. If employees acknowledge that nothing they do on their work computers is private, the employer has likely already gone a long way toward nipping in the bud inappropriate use of social media at the office.

Lori Higuera, a director in Fennemore Craig’s Litigation Section, co-authored this article.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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Social Media as evidence

Social Media Series: Using Social Media As Evidence In Lawsuits

This article is part of an on-going, social media series.


When litigating against a former employee, the Internet can lead to an evidentiary goldmine for an employer. A former employee’s social media activity may provide evidence of the employee’s breaches, such as a violation of a non-competition provision or breach of confidentiality.

Courts have addressed the litigation strategy of discovering evidence in an employee’s communications in cyberspace. Two recent cases make clear that emerging law tends to favor an employer’s ability to tap into an employee’s social media space as another litigation tool.

In Indiana, the Equal Employment Opportunity Commission (EEOC) filed a sexual harassment suit on behalf of several employees who claimed emotional distress resulting from the alleged wrongdoing. As part of its defense, the employer sought to discover information from the plaintiffs’ Internet social networking site profiles and other communication from their Facebook and MySpace accounts. The court decided that this information was discoverable by the employer because the plaintiffs already had shared the information with at least one other person through private messages and perhaps a larger number of people through postings.

Similarly, in New York, the court rejected an employee’s assertion that her social media activity was private and could not come out as part of the lawsuit. She had sued her employer claiming discrimination based upon her disability. The employer sought to use her Facebook content as evidence that she was not disabled at all. Rejecting the plaintiff’s privacy concerns, the court explained there is no right to privacy in social media content, adding that when a person chooses to disclose information on a social media site this act of sharing such information weakens her ability later to claim the information is protected by privacy.

Even if not considered private, how can it be that an employee’s entire social networking site activity is relevant to his specific claims in a lawsuit? An Indiana federal court answered this question in a situation where the employer sought access to its employee’s entire body of social networking activity on Facebook and MySpace to seek evidence about the employee’s emotional distress claim.

The court determined all of the employee’s social networking activity must be turned over to the employer, including any profiles, postings or messages, status updates, wall comments, causes joined, groups joined, activity streams, and blog entries that reveal, refer or relate to any emotion, feeling or mental state.  Even though the courts’ recent actions show a general favoring for the employer when it comes to discovery of employees’ social media activity during a lawsuit, employers would be wise to watch their own social media activity. The impact of social media in trials reaches across the courtroom to everyone involved in the litigation, including the employer’s agents and key witnesses. Accordingly, employers should view the courts’ rulings on social media as a premonition and make sure their own organization is in order with the appropriate social media protocol and policies.

Lori Higuera, a director in Fennemore Craig’s Litigation Section, co-authored this article.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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Social Media at Work

Social Media Series: Companies Need To Set Parameters For Social Media Use At Work

This article is part of an on-going, social media series.


If you run a business and provide Internet-enabled computers to your employees, it is crucial that they understand how or if they can engage in social media while on the job.  Given how fast our world is moving, some would say that to prohibit employees from tapping social media at work could hinder the business — particularly if employees are engaged in social media for work purposes. Others would argue that it’s a slippery slope and that if employees can use social media for work, they will naturally engage in it for themselves.

Therefore, employers should clearly address, by policy, an employee’s use of social media in marketing, publicity and networking. And, the employer also should address employees’ use of social media for non-work activities that can impact the employee’s work.

In order to write a social media policy that is appropriate for your workplace, it is important to consider several questions.

First, does the employer expect employees to use their personal social accounts for marketing the business?  If so, then the employer needs to be cognizant of the fact that the employee’s personal account might contain non-work related information that is not representative of the employer.

Second, is the employer going to create work-related social media accounts that employees would be required to use?  If the employee uses employer-provided social media, such as blogs, then the social media policy needs to specifically address prohibited types of content (e.g., sending or posting offensive, obscene, or defamatory material or disclosing confidential or proprietary information).

If the employer decides to allow employees to engage in personal social media on the job, the employer also should consider whether to include a general prohibition against using social media in a way that is inconsistent with the employer’s interest or otherwise violates existing policies. Additionally, when the employee’s affiliation with the business is apparent, the employer might suggest that the employee include a disclaimer that the views expressed on the social media outlet are personal in nature and in no way represent the views of the employer.

Lori Higuera, a director in Fennemore Craig’s litigation section, co-authored this article.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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