Thursday, July 23, 2015

HR Has More Important Things To Do

On Tuesday, Salon published an article titled “5 Ways Corporate HR Departments Monitor Your Movements – Even When You’re Not Working.”  Because we’re always interested in the subject of employee monitoring, we eagerly clicked on the article, thinking that perhaps it would be a discussion of some new technology.  What we found was surprising and concerning. We’ve taken some time to digest the accusations contained in the article, and we think they are generally misguided and sensational.  Take a look at the article, and then consider our thoughts in response.

Bring Your Own Device
.  For a decade now, employers have embraced BYOD for two reasons: (1) employees want to use their own smartphones; and (2) it appeared to be cost effective.  Lately, employers are concluding that the relatively low cost of BYOD programs may not justify the information security issues that such programs can create.  When using BYOD, employers put their sensitive data on a device that is not theirs.  The
law obligates employers to protect this data.  While the Salon article is correct in reporting that employers ask employees to install apps on their personal devices, it is wrong to suggest that employers necessarily have a nefarious motive for doing so.  The apps employers insist on are designed to protect sensitive information (including personally identifiable information about employees) or support business operations. They are the trade-off the employee must make for the convenience of using a personal device to access the employer’s system. Use of apps to track employees while off duty, or to surreptitiously monitor employee movement or activity even while on duty, is rare.  It has happened, but employment lawyers advise against it and the employers who do it are asking for trouble.

Social Media Monitoring.  Employers do not have the time or the resources to watch the personal social media accounts of employees, as the article seems to suggest they do.  Even if an employer wanted to devote its resources to such monitoring, we (and, we believe, most employment lawyers) would strongly advise against it.  That said, employers should and do discipline employees for inappropriate posts.  More often than not, this happens when other employees bring inappropriate posts to management’s attention.  If a social media post involves communication that will affect the workplace – such as discriminatory or harassing comments about co-workers, or disparaging comments about customers – the
law may require discipline.

Employer Branding.  The Salon article is correct in pointing out that some companies have asked employees to use their social media accounts to share good things about the company.  Employers may ask employees to share job announcements, pictures of company picnics, and news items about products. 
Federal Trade Commission Guidance addresses such requests, and we advise employers to proceed with caution when they ask employees to become “brand ambassadors.” However, the article incorrectly states, “In its terms of service agreement, Facebook explicitly bans employers from having employees use personal timelines for the company’s commercial gain.”  In fact, that’s not what Facebook’s terms of service say.  They say, “You will not use your personal timeline primarily for your own commercial gain[.]” There is no prohibition on using it for another’s gain, including an employer’s gain.  When an employer suggests a post or tweet, the employee can still post all of his or her personal photos and commentary and is still in control of his or her personal timeline.

The case Salon cites as an example of an employer demanding that employees give up their accounts is an outlier, and it’s a great lesson for employers. 
Phonedog.com sued a former employee when he did not turn over the Twitter account he had used to promote the company.  The case is still in process, and we don’t know what the final outcome will be.  It caught the attention of employment lawyers, however, and the very fact that Phonedog.com’s problem ended up in a lawsuit makes it clear that employers need to address issues of ownership of social media accounts at the outset of account creation, and in clear policies.  We encourage them to do just that.  We don’t expect many more cases like this one, and one case certainly does not suggest a trend or common practice.

Access to Social Media Accounts.  The Salon article is correct in pointing out that there are
laws prohibiting employers from asking for passwords to employees’ and applicants’ social media accounts.  In our experience, such requests are rare.  Employers may see and evaluate what candidates have posted through a google search, but that’s very different from an attempt to get beyond privacy settings.  Employers legitimately want to know if applicants will be an asset to the company, and social media can provide relevant information.  Of course it can also reveal protected class information, and that can get an employer into trouble.

Hawaiian Shirt Day is Social Engineering.  We found this part of the Salon article to be offensive and just kind of silly.  It suggests that HR overlords are conniving to see who will actually wear that Hawaiian shirt to further the corporate interest.  We see a much more benign purpose.  Theme days and getting team members together over crockpots, softball, or other activities are hardly social engineering, and such efforts can foster collaboration and boost morale.

Open Office Plans are Prisons.  We don’t like open floor plans either, but it strikes us as a stretch to describe them as prison-like.  And it’s certainly not fair to blame HR for their existence.  In our experience, HR professionals don’t like open cubes any better than anyone else.  They wish they had their own offices, or at least access to private space to hold meetings and make sensitive calls.

When the Salon article was posted on my personal Facebook page, a prominent HR blogger, Jessica Miller-Merrell commented saying, “Another journalist who is tasked with writing an article that defames the HR industry.”  We think that’s well said.  Employers and employees will always have issues and conflicts.  We strongly agree that technology creates new challenges for the employer-employee relationship and the HR professionals who manage it.  We just don’t think it’s helpful to overstate those challenges, or to assume malicious intent on the part of employers (or employees, for that matter).  Better, we believe, to know and follow the law, adopt technology with care, and focus on the legitimate concerns that arise as we all adjust to the possibilities and problems technology creates.

Posted by Kate Bischoff