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Tanner Montague came to town from Seattle having never owned his own music venue before. He’s a musician himself, so he has a pretty good sense of good music, but he also wandered into a crowded music scene filled with concert venues large and small.But the owner of Green Room thinks he found a void in the market. It’s lacking, he says, in places serving between 200 and 500 people, a sweet spot he thinks could be a draw for both some national acts not quite big enough yet for arena gigs and local acts looking for a launching pad.“I felt that size would do well in the city to offer more options,” he says. “My goal was to A, bring another option for national acts but then, B, have a great spot for local bands to start.”Right or wrong, something seems to be working, he says. He’s got a full calendar of concerts booked out several months. How did he, as a newcomer to the market in an industry filled with competition, get the attention of the local concertgoer?

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by Sara McGrane
August-September 2014

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Law

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To tweet or not to tweet: How to manage social media

Social media have a direct impact on all aspects of employment, from recruiting and hiring through termination. This phenomenon has created a host of practical and legal issues for employers.

While hard-and-fast solutions are rarely available in this evolving area, here are a few strategies for assessing and responding to the risks associated with workplace use of social media.

Boost or bane?

With social media use permeating the workplace, the question becomes whether this activity is a boost or a bane to the employer’s bottom line. Preliminary studies have been mixed.

On the one hand, a 2013 survey by Salary.com found that 69 percent of employees visit non-work-related websites each day. Over one-third (34 percent) of people said they routinely waste 30 minutes or less each day while on the clock.

Nearly one-quarter (24 percent) said they waste between 30-60 minutes daily, with 11 percent claiming they spend several hours per day wasting time on non-work-related sites.

If an employee works 2,080 hours per year and is one of the 11 percent that wastes at least two hours per day on non-work-related sites, that equates to 520 hours per year.

If earning $30 per hour, that employee is costing the company $15,600 in lost productivity annually.

Other data suggests that social media’s effect is inconsequential. For example, one study found that productivity is not affected when employees use their smartphones to access social media during work.

Other studies have found that employee productivity is actually increased by employee social media use.

While further research is needed to understand the effect of social media on employee productivity, it is fair to say that some professions seem to benefit from the increased “connectiveness” engendered by social media, such as individuals in the sales, marketing and professional services fields.

In other, more “solitary” professions—factory workers and administrative assistants—people may see less of a benefit or even a hindrance to their productivity.

Hiring & recruiting

One area where employers have embraced social media is in recruitment and hiring.

Employers can quickly and inexpensively identify and source potential candidates, validate an applicant’s résumé against their professional networking profile, identify an applicant’s potential organizational “fit,” identify an applicant’s professional qualifications, communication and skills, and evaluate whether an applicant has received positive or negative feedback.

At the same time, however, use of social media to screen potential candidates has some legal risk. For example, social networking websites frequently contain protected characteristics such as age, race, gender and religious affiliation, which employers are prohibited from considering in making their employment decisions.
Since 2012, 14 states not including Minnesota have passed “password protection” bills, which generally prohibit employers from requesting username and password information or otherwise accessing the password-protected portions of an applicant’s personal social media.

On the federal side, the Stored Communications Act of 1986 (“SCA”), which prohibits intentional access of electronic communications services without authorization, arguably already prohibits an employer from requesting or demanding an applicant’s user name and password to access non-public social media profile information.

Employers who recruit or screen online, however, need to develop policies to manage the potential pitfalls. To get started, employers should ensure that:

• clear policies are developed, communicated and enforced with respect to the purposes for which social networks, blogs and the like may be mined for data about job candidates and that all relevant third party terms of use agreements are addressed and satisfied.

• employee handbooks and other appropriate manuals and forms, including permission forms for background checks, notify applicants of the scope of the company’s policies on screening practices.

• the reasons for a candidate’s rejection are clearly documented and consistent with the qualifications outlined in the job description.

A reasonable compromise between using and not using social media for screening purposes may be to limit online background investigations to post-offer screening. Such a policy may help to prevent inadvertent reliance on improper criteria in rejecting a job candidate.

Legal pitfalls
In addition to social media’s effect on productivity, employers also have an interest in ensuring that, like the physical workplace, the digital workplace is free from unlawful harassment and discrimination. Employers also have a legitimate interest in ensuring that confidential information is not pilfered from the office or posted on Facebook.

Considering the legal risks and ever-changing nature of social media use, employers should develop a social media policy that establishes clear and consistent guidelines to ensure that they understand what’s permitted, what’s not, and how to know the difference.

Guidelines should:

1. Use plain English. Skip the confusing legalese, sophisticated technical terms, acronyms and abbreviations.

2. State the goals the company intends to achieve. Advise employees of their right to use social media while providing a clear understanding of prohibited social media activity.

3. Instruct employees to use good judgment and take personal and professional responsibility for what they publish online.

4. Request (but do not require) that employees keep company logos or trademarks off their blogs and profiles and not mention the company in commentary, unless for official business purposes.

5. Remind employees of their legal responsibilities under federal regulations. Employers in certain industries, including health care, financial institutions, and any employer with trade secrets or other confidential information should be very specific about what these rules prevent employees from sharing online.

6. Provide specific examples of prohibited conduct. By providing a list of specific examples of unacceptable behavior, statements and activities, an employee can more easily understand the type of activity prohibited under the policy.

7. Instruct employees to not post or blog during business hours, unless for official business purposes.

8. Prohibit employees from using company email addresses to register for social media sites.

9. Prohibit posting false information about the company or its employees, customers or affiliates.

10. Reinforce policies by conducting periodic trainings.

11. Notify employees that violation of social networking policy can be grounds for discipline, up to and including termination.

Because social media is a relatively new territory for both employers and employees, employers (and their attorneys) are constantly refining how these tools should operate in the workplace.

For employers, the key questions are how to get business benefits out of these platforms and how to ensure that employee use of social media while at work is neither distracting nor potentially harmful to the organization.