LinkedIn, twitter, Facebook, MySpace …. Social media and networking sites offer valuable tools for branding our businesses, advertising our career openings, and identifying prospective employees. The flip side of these powerful resources is the accompanying legal risks when utilizing them for the hiring process. In this three-part series, I’ll explore some of the legal implications for your company if you choose to tap the power of social media.
The first risk set concerns the terms of service (TOS) for the social media site. Often overlooked in discussions about social media and employment, knowing and complying with the terms of service for the site is actually a critical component in protecting your business.
For example, facebook intends profiles (or basic user accounts) to be utilized for personal, social, noncommercial functions. To complement this, it offers pages for more commercial information and pay-per-view and pay-per-click advertising for overtly commercial functions.
In the facebook Terms of Service, several items make this point.
- 3.2 – “You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook.”
- 4.4 – “You will not use your personal profile for your own commercial gain.”
I have a facebook acquaintance who is a published author. Bob consistently posts as his status update the prices and links to buy his books. Another international friend designs purses. Intan frequently uploads photos of her designs. Not a problem for the TOS … until she adds the price and a hyperlink to the order form! Technically, both of these individuals have commercialized their personal profiles … in violation of the facebook Terms of Service.
How does that come into play for employers and hiring? If your HR manager or agency recruiter uses his personal account functions to promote a position for which you’re hiring (such as posting it as a status update), then he could be held liable for violating the facebook Terms of Service. MySpace has similar limits to the commercial or business use of personal accounts, providing other ways to promote and advertise. Twitter and LinkedIn, sites that are oriented a little more favorably to business networking, each have some commercial limitations in their TOS too.
Realistically, it’s probably not likely that Facebook or MySpace would go after your business if they learn that you have violated the Terms of Service by using a personal account for commercial purposes. Even so, it doesn’t take many complaints of reported abuse to result in a locked or banned account. So it just makes sense in terms of your liability to know and comply with the Terms of Service when you use a social networking site for business purposes, including the advertising of your job openings and hiring opportunities.
Happily, TOS compliance also makes sense in terms of effectiveness. Advertising a job on my personal facebook account will probably reach only my circle of friends – or perhaps friends of friends, depending upon my privacy settings. The same content posted on the Frank’s Employment facebook page will be indexed by google and more broadly available to the full facebook audience. How nicely convenient that what reduces our business liability with the site also increases our communication reach with the site’s members!
Coming next: Social Media and Disparate Impact
Note: We are not labor attorneys. If you have questions about the legality of social media in your hiring practices, please consult your business legal counsel.
Republished with permission (including modest content and format edits). Originally published by Elyse on our employer blog in 2010.