Today I managed to get downtown for the OCRI 45th Circuit session "All aTwitter About Facebook." 45th Circuit is an Ottawa forum for lawyers to get together and discuss topical legal issues affecting their clients and other companies. The topic of this installment was the legal issues for companies whose employees engage in social networking activities for personal or professional reasons.
If you are with a company that has yet to introduce a policy for social networking for employees, don't feel bad. Such policies are far from the norm, but, the panellists agreed, they are coming.
The moderator, Thomas Prowse from Gowlings, was particularly thoughtful on how complicated the issues are, and how, in particular, the lines between personal and professional are increasingly fuzzy.
Some interesting points:
1. Companies should consider limiting or controlling their online searching with respect to prospective employees.
None of the information that is considered protected at the "application" phase (including the candidate's age, plans to have children, religious views) should be gathered or even reviewed. If it is, potential employees that are screened out of the process may have a claim that they were discriminated against on these grounds.
Ideally, the panellists noted that it would be better to bifurcate the hiring process. Companies should consider engaging an independent agency to source candidates, knowledgeable about what details are relevant and allowable to disclose, and then ensure that this party turns over only the relevant and allowable information to the people doing the screening (ideally inside the company). They felt that this was going to be an increasingly valuable service to provide. (Having come from the recruiting side, this was, in essence, a significant side benefit to the service my former employer offers its customers.)
If companies are doing searches on candidates, this activity should be kept for later on in the process, akin to checking references, and again ideally limiting the scope of the information you are looking for or reviewing. Again, all acknowledged that this is VERY hard in practice.
One of the best quotes, from Melanie Polowin at Gowlings, with respect to screening employees based on what they post on their Facebook or LinkedIn pages: "stupidity is not protected" information, under employment law.
2. The other key topic of the panel was the kinds of policies companies should put in place to guide employees engaging in social networking -- whether or not this activity takes place using company infrastructure and on company time.
Another great analogy, to paraphrase Polowin -- just as in teen sex, you may be tempted to encourage abstinence, but you have to plan (and educate) as if employees will engage in the activity.
Using a specific case, Cindy McCann (Halogen) pointed out the need to have defined, as the starting point for any policy, what it is you want to achieve. What is the objective? Rather than starting with the rules (i.e. no personal use) you need to think about what it is you are trying to achieve (that work gets done, that employees are as productive as possible) and draft your policy accordingly.
Policies should be built on the notion that of the "duty of good faith" that employees owe their employer. In other words, people should filter what they are doing online with the understanding that they not cause harm to their employers. If their activities are harmful to the business prospects of the employer, they can (and should be) disciplined. Beyond that, personal activities that involve bullying or harassment of co-workers, or that demonstrate human rights violations, should also be disciplined.
Finally, all company policies should be communicated, communicated and communicated (multiple times and ways), and they should be refreshed, reinforced, revisited on a regular basis.
Again, all very interesting, and the landscape is clearly changing. From my communicator's background, I am much more likely to see the benefits of having employees engage actively in social networking, but the legal questions of liability and exposure are real, and, like everyone in attendance, I learned a thing or two I hope to apply down the road.
(© Photographer: Ladykassie | Agency: Dreamstime.com)
