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Business Ethics

The Do’s and Don’ts of Using Social Media in Workplace Investigations

By Josh Young Sep 15, 2016

social media workplace investigations2

Over the past few years, social media platforms have grown to become a larger presence in our day-to-day lives, and with so much information readily available online, investigators have begun taking advantage of these sites to obtain data that previously would have been unavailable.

According to a survey conducted by the International Association of Chiefs of Police, 88.7 percent of law enforcement agencies use social media sites in their criminal investigations.

Similarly, corporations have started pulling data from online sources to support legal and civil actions. Back in 2011, in the landmark case of Zimmerman vs. Weiss Markets, Inc., a U.S. court ordered a private citizen to provide access to his personal social media accounts to the company he was suing.

The business that was being sued used photographic evidence available in the complainant's Facebook profile to prove that his claims of a permanently debilitating injury were "overstated."

While publicly-posted social media records can help speed along workplace investigations, businesses need to proceed cautiously. In recent years, several new laws have been passed to protect online privacy with many of these rules focused specifically on limiting employer access to the online presences of employees.

With federal regulations anticipated in the near future, the privacy landscape will continue to shift, and you should definitely keep a close watch.

At the same time, with so much of our lives happening online, the likelihood of inappropriate behavior occurring in a virtual space outside of your company's control will only increase. Rather than waiting for an online harassment complaint or damaging post to occur, you should be proactive and begin protecting your company now.

What Can Employers Do?

Know the law

Back in 2012, Maryland, Illinois and California were the first states in the country to pass legislation that limited the types of personal electronic account information – particularly social media passwords – that employers could request. Since then, 22 additional states have passed similar privacy laws.

These rules can vary considerably from state to state. In New Jersey, merely looking over the shoulder of an employee while they access a social media account can be considered a violation, while in New Mexico, restrictions apply only to applicants and not to active employees.

With federal regulations anticipated in the near future, the privacy landscape will continue to shift, and you should definitely keep a close watch.

Create a social media policy

Draft and routinely review policies that relate to any social media accounts operated for business purposes. Make sure that these rules unambiguously identify the ownership of these accounts as well as which employees should have access.

Institute clear content guidelines that outline what topics can and cannot be discussed using these accounts. Establish your company’s right to access any data stored on business-owned IT systems.

If your state allows it, you should draft employee guidelines and conduct codes to cover work-related misconduct that might involve an employee’s personal online accounts. Offer specific examples of prohibited conduct, such as sending harassing messages through social media sites or sharing confidential information or trade secrets through personal accounts.

Require that employees obtain prior written authorization before posting to social media sites in a manner that would imply that they are speaking on behalf of the company.

Educate your staff

From auditors to IT technicians, any personnel involved with an internal investigation should be familiar with local privacy regulations and receive proper business ethics training. Even if a request for account access is entirely benign, such as searching for the source of a malware infiltration, this action could violate state law. Similarly, having an investigator create a fake account to "friend" an employee under investigation will likely result in unusable evidence.

What Can't You Do?

Stifle free speech

When constructing these social media policies, be mindful of federal guidelines that protect employee speech. According to the National Labor Relations Board, you should avoid any policies that relate to employee discussions focused on wages or working conditions.

While a single complaint or comment by an employee may not be protected, that same exact statement could be protected when part of a larger discussion.

Ignore online harassment

If one of your employees engages in inappropriate online behavior of any kind, conduct a full investigation. While you should be mindful of any state privacy laws, most of these regulations include exceptions for illegal activity such as trade secret violations, discrimination and harassment.

The Next Step

Balancing the needs of your investigation with the rights of employees and accompanying privacy laws can and will be challenging.

Even when records can be requested legally, local regulations might place limits on when and how you can access this data. Take your time, and seek expert advice and legal counsel where appropriate. 

To learn more about this topic, you can fill out the form on the right to request a free download of our Internal Investigations Best Practices Webinar.

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