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Social Media and Legal Issues: What Businesses Need to Know

Q&A with Virginia-Highland resident and attorney Douglas J. Miller.

I'm David Eckoff. I'm on a mission to help businesses and residents in Virginia-Highland use social media and technology to their advantage.

This week, we'll explore legal issues with social media and what local businesses need to know.

To learn more, I interviewed Virginia-Highland resident Douglas J. Miller, attorney at Elarbee Thompson. Here's our Q&A.

When did you first start looking at social media and law?

DM: I'm a fairly young attorney. Social media has been in my life personally for pretty much my entire legal career. Facebook really took off when I was in law school. That's when I first got on social media. I've never practiced law in a world in which social media didn't exist. So it was natural for me to think about some of those implications from the beginning.

Social media is so new, what does the law say about it for business?

DM:  It's very important to understand, this area of law is very unchartered. There is very little case law dealing with social media because so much of it is new. There isn't a whole lot of authority to follow. You're trying to interpret what you do know already and apply that to a context that it has never been applied to. That's one of the risks associated with dealing with social media for businesses, there isn't really a whole lot that's cut and dry. There aren't a lot of black and white rules to follow.

Based on what we do know, what are some of the issues local businesses should focus on?

DM: One of the biggest risks I see is in hiring decisions. For example, a restaurant manager hiring for a new bartender gets a bunch of resumes from potential candidates. They take those names down and plug them into Facebook to find out information about that person.

The problem with doing that is that you are immediately exposed to a lot of information that should not be considered in making a hiring decision. For example, if you bring up someone's Facebook page, you'll automatically know their race. Based on some of the content they have there you may be able to determine their religious beliefs. So essentially you can find out what's called protected category or protected class information that you are not allowed to make hiring decisions on.

It would be difficult for an employer to say that was not considered when it's determined that they have been using social media in their hiring decisions.

There is a way for businesses to avoid that problem if they want to use social media such as Facebook in their hiring. That would be to separate out the person who is actually looking at Facebook and the person who is making the decision. So one person would look at Facebook and you would obtain the information you want to obtain, for example if they have photos up of them acting crazy or something like that. The person looking at Facebook would not report to the person making the decisions the person's race or religion. By doing that, you are removing yourself from any of the information that you would not want to consider in making a hiring decision.

What are some of the other risks for businesses using social media?

DM: There are certainly other risks. One of the few cases that has come out in this area dealt with a restaurant group, the Hillstone Restaurant Group, that owns Houston's among other restaurants. In that case, a supervisor had heard through the grapevine that an employee had made some disparaging comments about the restaurant on a private discussion board. The supervisor demanded the employee give him his or her login information so that he could view the post that had been made on that discussion board.

The take away from that case is that supervisors cannot demand the login information for employees' third party accounts. They cannot say they want to know the user name and password for the employee's Facebook account to see what they are saying about the restaurant. That's a violation of federal law.

How about when employees are doing business on behalf of the company on social media?

DM:  The first step would be to have someone appointed to do that. So there is no confusion as to what that person's role is. And what that person's limits are as to what they can disclose.

If someone is not acting on behalf of the restaurant but is really talking about the restaurant for themselves, I would advise putting in place a disclaimer that the comments are made representative of the employee and not the restaurant.

What if you're the owner of a restaurant and you have employees. What about the owner or manager "friending" their employees on social media sites like Facebook?

DM: We generally advise against supervisors friending subordinates for several reasons. One, you want to minimize the dialog between them in a social media setting. You also don't want to send the wrong message about the hierarchy of the organization. A supervisor friending a subordinate has the potential to send the wrong signal about the working relationship. And there should be a policy in place to address this.

It's good to have a collegial setting, but having a policy in place that prevents friend requests, can help the supervisor in that they can fall back on that for the reason for not friending an employer and it doesn't have to be an awkward situation. It makes it a lot easier for everybody.

Should a business have written policies about social media?

DM: A lot of the risks can be addressed by having well written social media policies. We generally advice all of our clients who are engaging in social media to adopt policies.

There are other areas, such as confidentiality. You would want to have a policy in place that discusses what is confidential and what could not be posted, for example on Facebook. As the owner of a restaurant, you would not want your vendor lists or customer lists posted by some disgruntled employee. So you would want to have a policy in place that addresses what is confidential and what cannot be disclosed by employees through social media networks.

When you do have policies in place, a lot of businesses want a policy that reads employees cannot say anything bad about their business or supervisor on social media in any circumstances. The problem with that is that it's possible such a policy could violate the National Labor Relations Act. One of the rights employees have under the NLRA is to engage in concerted protected activity. So if you have an employee that gets on Facebook and is in a dialog with their co-workers through wall posts about something at work, if you were to try to restrict that or if you were to take disciplinary action against those employees, it's possible that you'd be violating the National Labor Relations Act because their concerted protected activity, their discussion in a group of employees on Facebook, is protected under the National Labor Relations Act.

That's one area that is at the forefront of this, and is one of the most uncertain areas, how this all will be applied. This is an area employers need to be mindful of, that they do not have the ability to completely restrict what their employees do on social media sites.

Social media and cell phones are coming together. What are the issues around this?

DM: One concern is texting while driving. Georgia has passed a low prohibiting anyone from texting while driving. But if you own a bakery or you make catering runs for your restaurant and you have an employee driving the restaurant's truck to make that delivery, and if he or she is on their phone texting and gets into an accident, that may be a problem. So it's important to have a policy in place that employees are prohibited from texting while driving.

Closing thoughts for restaurants and businesses in Virginia-Highland about social media?

DM: I think this is probably the single best avenues restaurants have to put people in their seats and get the word out. None of this is intended to scare anyone or keep people from using social media. A lot of these comments are geared towards proactive steps which can help prevent issues developing.

This is an area that should continue to be embraced and utilized by restaurants.

I think it will be important going forward to make sure they have their policies in place and they've thought about theses concerns. They're all able to be addressed. There's nothing here that I've said that cannot be effectively managed.

Once it has been effectively managed, I think it would set apart a restaurant from some of its competitors. They can probably rest a little easier knowing that they are engaging in social media in a way that is not going to violate any laws.

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Editor's note: This article contains legal information for your general information only. Legal information is not the same as legal advice - the application of law to an individual's specific circumstances. Consult with a lawyer to get legal advice about a particular situation.

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