Eat healthier. Ger more exercise. Spend more time with the kids.
Do you make resolutions for the new year? If so, you probably focus on the items that focus on your family, health and prosperity. Employees should also take the time to make some resolutions regarding social media and how it impacts their workplace. Companies too should keep some key resolutions in mind as the legal issues concerning social media in the workplace continue to shift. Below are some commonsense, New Year resolutions that will help employees and employers alike.
Resolutions For Employees
1. Read and understand all the privacy settings of Facebook, LinkedIn, Twitter, etc. I know. This is like getting a root canal. Most everyone has probably skimmed the privacy settings before, and probably have been confused, or frustrated by the process of trying to get those settings “just right.” And, to make matters worse, social media providers often change these defaults and settings in the name of “making it more convenient.” Or worse, some social media providers insert language (ahem, Instagram) that imply that users’ pictures will be used by the social media provider for commercial purposes. (Instagram is now facing a class action lawsuit in the federal district court based in San Francisco). My suggestion for everyone using these types of social media providers is that you really resolve to thoroughly read, review and analyze the privacy settings (and not just for employment law purposes). This resolution will take time to complete. Even Mark Zuckerberg’s sister, Randi Zuckerberg, recently demonstrated some confusion over Facebook’s privacy settings. In the long run, you will be happy and able to set your privacy settings just they way you want them if you truly understand the details. This knowledge becomes power, and can help everyone avoid embarrassment, or worse, a workplace termination.
2. Do NOT friend co-workers and especially supervisors/managers. This is a basic resolution that too many people ignore. Even if you follow through with Resolution 1 above, you should still consider and carry out this resolution. If you have already been operating under this practice and have NOT become “Facebook friends” with you boss or co-workers – Congratulations! My guess, however, is that unless you are an employment law practitioner, then you probably have a few coworkers and maybe your supervisor on your friends list. Here’s the problem: people change. Your favorite co-worker could become your worst nightmare when you get the promotion that he wanted. Or, even if the circumstances of your friendship don’t necessarily change, you do not have control over your co-worker’s privacy settings.
There are countless examples of people getting fired because of a post that a supervisor or co-worker saw or shared (just google “facebook firing stories”). For example, Sara Jaszczyszyn, took a Family Medical Leave from her employer due to back pain. According to her doctor, she was “completely incapacitated” for an eight-day period, and the employer did the right thing by giving her medical leave time off. After the eight-day period, she still needed additional leave, and claimed that she could not perform all of her job duties. However, during this period, she also went with friends to a local festival. She was at the festival for eight hours. Later, she posted pictures on her Facebook page showing her at the festival. She also left voicemail messages to her supervisor stating that she would not be at work the following Monday because she was in pain. Not surprisingly, the supervisor and several of Ms. Jaszczyszyn’s co-workers were her Facebook friends. After the employer investigated, and consulted with legal counsel, and after Ms. Jaszczyszyn was unable to explain the “evidence,” the company terminated her employment for fraud. Ultimately, she sued; she lost at the trial court; she appealed; and she still lost. Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697 (6th Cir. Nov. 7, 2012) (unpublished).
Follow through with this resolution – don’t become another story on The Facebook Fired.
3. Get out your Employee Handbook/policies and understand them. If your employer is on-the-ball, it will have provided to you an employee handbook. Read it. It won’t be as interesting or engaging as a novel, but it will be much more important for your career. Understand that you likely have no expectation of privacy when you use company provided computers, internet, smartphones, tablets, and other resources. Understand that there are limits to what you can post or share on social media, like items that are trade secrets, confidential information, or are discriminatory or harassing. Understand who owns social media accounts and keep your personal accounts and activities completely disconnected with any employer-provided accounts and electronic devices.
Resolutions For Employers
1. Update your policies/Handbook and resolve to stay updated. The Employee Handbook you rolled out in 2012 is outdated. The law on social media and the workplace is evolving. Take a read through many of my posts from 2012 and you can see some of these changes. And, more changes are likely in 2013. The obvious policy to implement and update is one regarding use of social media at work. But, there are many others that are related, including policies on privacy, blogging, using company-issued (or personal) mobile devices, wage and hour compliance, discrimination and harassment prevention, confidentiality and trade secret protection, and many others. It is a good idea to update your company’s handbook at least once a year, and expect that some policies should be updated more frequently.
2. Take care when going through with a “Facebook firing.” Employers need to maintain at-will employment relationships when possible. And, if an employer wants to take steps to discipline or terminate an employee due to something posted on social media, the employer should resolve to do so with great care. As I’ve written about before, the National Labor Relations Board is become very proactive in protecting the rights of employees in union and non-union workplaces. Furthermore, employers never want to face lawsuits, so termination decisions should be properly investigated and advice from an employment attorney should be received.
3. Retain an employment attorney. Develop a solid relationship with an employment attorney – someone in your company’s state would be best. This is like buying insurance. Retaining an employment attorney, and paying a relatively minor fee to that attorney, pales in comparison to the costs of ligating even one wrongful termination case. But, too many businesses go without a valuable resource that would likely save much grief and lost profits. Relying on strong HR professionals is great, but having an employment lawyer you can call is a necessity these days. Don’t be shy to shop around, get referrals, and talk candidly about hourly rates, or flat fee arrangements. This resolution is particularly important for companies who do not have the support of an in-house employment law attorney. At the very least, if your company is not able to retain an employment attorney for some reason, a company representative should continue to read relevant blogs like this one and keep updated with the law as best as possible.
These 6 resolutions are not onerous, and they are quite realistic and achievable. Absolutely spend more time with family, and get more exercise, but also make these or other resolutions to protect your job, and to advance the health of your career and of your company.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.
- First “Facebook Firing” Decision Issued by the National Labor Relations Board (windmillnetworking.com)
- New Law Prohibits Employers from Accessing Personal Social Media Accounts of their Employees (onesocialmedia.com)
- Employers: More Employees With Personal Mobile Devices Means More Problems In The Workplace (windmillnetworking.com)
- Labor Rules on Social Media Protections (hispanicbusiness.com)
- Disability Leave Foiled By Facebook Photos–Jaszczyszyn v. Advantage Health (ericgoldman.org)
TOPIC: Social Media and Employment Law