The purpose of this paper is to point out the employers versus the employees’ point of view in regards to the analysis of law, ethics, and social responsibility. Not since the industrial revolution has there been such a shift in how business and commerce is being done. Social Media and User Generated Content shifts the paradigm of business away from product seeking customers’ commerce to the individual dictating needs and desire and demanding instant customer service.
Company use of social media in the work place has increased exponentially so much so that Human Resource Departments and Corporate Risk Managers are being out paced. HR, corporate managers, and other company professionals are using social media to obtain information about competitors, candidates, employees, trade secrets and more this type of activity can violate employment laws, trade secret infringements, and violate the employees’ right of concerted activity. Is any of it legal? Is it ethical? This paper takes a look at Social Media and in particular the rights of employees to participant in concerted activity.
Integrating Values- The Legality, Morality, and Social Responsibility of Managing the Risk of Social Media Changing the Way We Do Business The exploding growth of social media has significantly changed the way people communicate at home and at work. Social Media touches nearly every facet of our business and personal life. Considered a rising revolution, Social Media is the biggest shift of industry and business since the industrial revolution because Social Media is causing a landslide shift in the way we ngage whether buying products or collaborating with fellow employees or friends it is all about User Generated Content. Social media is changing the way companies recruit, engage, and build relationships with employees and job seekers.
To realize the enormity of the Social Media take-over look at these ‘believe it or not’ facts: it took 38 years for radio to reach 50 million listeners; it took “Terrestrial” (non-satellite – regular tube and wire- grounded) TV 13 years to reach 50 million users – it took the internet 4 years to reach 50 million people and in less than 9 months Facebook added 100 million users. Erik, 2009) According to a survey completed by SHRM, The Society of Human Resource Management, ( An Examination of How Social Media is Embedded in Business Strategy and Operations 2011) Departments within an organization that are likely to lead the use of Social Media are Marketing 35% IT 17% HR 14% Management (corporate and executive)14%; Findings confirmed that today only 28% of organizations in general have an overall social media strategy; further divided by corporation size and you will find that 35% of corporations with employees of 2500-24,999 have a social media strategy and 35% of corporations with employees of 500 to 2,499 do as well;
The survey further noted that 39% of all organizations monitor employee social media use on company owed devices and overall all only 20% of all organizations use social media for internal communications between employees who work at the same location, it is used for information delivery, group meetings, and group discussions. However, surprisingly, the survey revealed that less than 45% of all organizations (all organizational sizes included) have a corporate social media policy. The phenomena of Social Media and the speed of its development appear to far outstrip the ability of corporate risk management to keep up.
Now and in the coming future for businesses it is no longer a question of if social media but more a question of how they will handle Social Media within and outside of the corporate halls. Why is social media changing “the way we do things” in business economics; in politics; in hiring and recruiting; in talent management; in building brands and in news gathering and delivery? According to Erik Qualman in his book Socialnomics the economic paradigm has shifted away from a product driven economy burdened with middle management full of marketing and sales personnel to a people driven economy that is driven by UGC (User Generated Content) because Social Media is not about the tools and the channels or the ust in time processing; it’s about people and what people do with the technology of software and computing (Erik, 2009).
It’s about connecting with friends new and old; it’s about instant collaborating in the work place; it’s about instant transparency and customer service; it’s about instant concerted activity; it is a means of communicating and engaging with people, Now. This new industrial era of Social Media brings with it new risks and issues for employers employees and stakeholders. There are issues of privacy, security, legal liability, when employees use corporate owned media for private use and legal consequences if employees use these sites to view or distribute objectionable illicit or offensive material.
If employers are doing a questionably legal snooping or data mining of individuals’ Social Media site or requesting as part of the pre employment requirements passwords to social media sites the employer may be breeching equal opportunity laws as well as breeching Computer and Internet Security laws and breeching ethical conduct where terms of service are outlined in the social media application. Generally, according to the legal minds of Crowe Horwarth, Social Media risks are classified under three main categories: Reputational risks, legal and employment risks, and information security risks. Depending on the situation, claim, or problem each issue can have a subset of each component and the corporation may be looking at both legal and reputational issues (Crowe Horwarth 2011). This paper is concerned with legal and employment risks though there will more than likely be information on all areas if only briefly as any real life situation may involve each category.
Legal Section Social media is being used not only for its marketing benefits but also for networking opportunities, collaboration, union activity, concerted activity, whistle blowing for employees and employers which is why there is a greater risk potential for breach of conduct. Violation of laws and possibility of an exposure under pre Social Media Laws where there may be no remedy or defense for either the employee or employer. The National Labor Relations Board, Congress, and other lobbying groups are trying to fill in the gap and provide either guidance or laws. When hiring, managers might want to check a candidates profile on social media sites for additional information about the candidate.
This practice can expose an organization o a candidates personal information that was not named or volunteered on an application or volunteered during an interview making available for viewing protected class information of race, age, sex, and sexual orientation that should not be a consideration in the hiring process, therefore the organization may be in breach of equal employment opportunity and privacy rules. Is it legal for employers to intercept, listen, or snoop into emails, phone conversations of employees? Can an employer ask for profile or log in information from potential candidates Facebook, LinkedIn, or Twitter account, or snoop on current employees? Recently there has been a lot chatter and content on potential employers asking candidates for passwords in order to review their Facebook, MySpace, Google, Twitter and other social media accounts in order to review content before hiring a candidate and to monitor these sites should the candidate be hired. Is this legal?
Well the U. S. Justice Department is of the opinion it is not. There is no direct federal law prohibiting this at this time, but the U. S. Justice Department considers it “a crime to violate the social media terms of service” (news. investors. com) and therefore these companies that are doing the personal data mining and snooping are doing so illegally and in direct violation of the terms of agreement for these sites. Facebook’s Term of Services state the following: “You will not solicit login information or access an account belonging to someone else” or “You will not share your password…. let anyone else access your account, or do anything else.. ight jeopardize the security of your account” (Facebook) Many states have looked into creating laws making this practice by employers, schools, and other entities illegal.
As of this writing Maryland has signed into law a bill that makes this type of activity illegal and several states are following. The U. S. Congress has resubmitted a bill for consideration making this type of violation of privacy a Federally Illegal act. The bill submitted by the House of Representatives is called (the) Social Networking Online Protection Act or SNOPA. It was originally submitted in 2012 and voted down it went back to committee for changes and is currently back on the floor for consideration.
The Electronics Communications Privacy Act (ECPA) of 1986 prohibits the internal interception of emails and phone calls of employees on employer provided equipment unless a valid business reason for monitoring employees are enumerated in a media policy or employee handbook. According to Caron Beasley, an SBA Consultant, if an employer’s Media policy is ambiguous or not being followed than usually any breech will be found in favor of the employee as personal calls and emails are not to be monitored according to the ECPA. In some cases the ECPA is being added as a count for damages in litigation against the employer. It seems more and more boundaries between personal and work life are hazy and blurred when social media is in the mix. If personal opinions are expressed through social media and it talks or targets a particular employer or a particular employee it can raise ethical issues for the employer.
The blurring of personal and work life boundaries can make it difficult for companies to uphold their duty of care to employees to prevent such things as cyber-bullying or sexual harassment. On the other hand the employer maybe breaching privacy laws as well as interfering with protected concerted activity. What is concerted activity and why is it protected? In 1935, then President Franklin D Roosevelt signed into being the National Labor Relations Act also known as the Wagner Act named for the Senator that sponsored the bill. NLRA was enacted to protect the rights of employees in the private sector to have the ability to discuss organizing and workplace issues with coworkers to engage in collective bargaining to take part in strikes and other forms of “concerted activity”.
The act also created the National Labor Relations Board (NLRB) which has two functions the first deals with labor unions and the second most important function to non union employees is to prosecute violations. (Butler, 2012) What is concerted activity and when is it protected within the context of social media. According to a report completed by the acting Attorney General of the NLRB, concerted activity is when employees are “engaged in activity with or on the authority of other employees, and not solely by and on behalf of the employee himself. ” Further, concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring truly group complaints to management’s attention.
The Labor Board has held that individual employee gripes are not concerted activity when the activity is contained to a single post on a social media site and there is no reciprocal invite to fellow employees to discuss the issue and reach a resolution or it is only between an employee and friends or there is no response. The acting Attorney General of the NLRB in January of last year issued a three part (3) report based on cases heard and tried over the last several years in regards to social media and provided us with better explanations or understandings of concerted activity as well as an understanding of what cases would be found to be in violation of the act and as well as which corporate social media policies were not sufficient.