Last week I was in a café when I overheard a conversation next to me. At a nearby table, a supervisor from a child care agency was interviewing a young job seeker. The interviewer asked the young college student a series of questions about her experience, education goals and schedule. From what I gathered, she had already gone through a phone interview and this was the first in-person meeting between the two women.
The interviewer then handed the applicant a stack of papers and explained, “These are forms we require for new employees. That way, if you get the job, you can start immediately and we don’t have to waste time going through all of this later.”
She explained that one page was about references. Another was about experience. Then she got to the last page.
“We need you to sign this. You just promise not to write our name on Facebook or Twitter or anything like that.”
That statement caught me off guard. Perhaps it shouldn’t have, but I regularly write and read about social media in the workplace because of my job and I’ve never heard about this happening during an interview. I wanted to find out more about the agency’s policy, but I didn’t want to interrupt the interview. So I left wondering a few things:
- Is that kind of agreement a standard practice in businesses today?
- Is that agreement legally binding?
- Does the agreement prohibit any mention of the company or only mentions that are disparaging or divulge confidential information?
- What about professionals who use social media sites as their online résumé and portfolio? Do they have to leave that experience off of their online work history?
So I decided to ask around.
One job seeker, Bob Johnson from New York City, says he hasn’t yet encountered any of these nondisclosure agreements in his hunt. He, like many job seekers, wonders whether or not such an agreement is an infringement on freedom of speech.
Erin T. Welsh, an associate with the law firm Norris, McLaughlin & Marcus, explains why some companies are persnickety about their employees and social media.
“According to newly revised [Federal Trade Commission] guidelines which took effect Dec. 1, 2009, employers may face liability for comments posted by employees on blogs or social networking websites,” Welsh explains. “If an employee comments about his or her employer’s products or services on such social networking websites and the employment relationship is not disclosed, potential liability may exist for the employer under the FTC guidelines — even if the comments were not sponsored or authorized by the employer.”
For this reason, Welsh explains, explicit guidelines about social media practices benefit employers. Clear guidelines can prevent negative attention from a wayward comment that calls into question the company’s ethics.
Joy Butler is an attorney and author of “The Cyber Citizen’s Guide Through the Legal Jungle: Internet Law for Your Professional Online Presence.” She has seen social media policies and agreements become commonplace in workplaces.
“A social media policy cannot prevent employees from exercising the right to talk about improving work conditions or organizing a union as such restrictions would violate federal laws,” Butler says.
In her experience, these policies typically address the following issues:
- The employee’s postings must not disclose any of the employer’s confidential or proprietary information.
- If the employee comments on an aspect of the employer’s business in which the employee has responsibility, the employee must identify himself as an employee of the company and make it clear that he is speaking on behalf of himself and not the company.
- If the employee identifies himself as an employee of the company, refers to the company’s work or provides a link to the company, the employee must include a disclaimer such as the following: “The views expressed on this post are mine and do not necessarily reflect the views of [XYZ Co.].”
- The employee must not include the employer’s logos or trademarks in the employees’ Internet postings.
Amid this head scratching, Becky Blanton, a professional ghostwriter, points out that nondisclosure agreements are common in many industries — especially hers. They’re also obstacles for her to overcome when piecing together her portfolio.
“When your [job depends] on showcasing work — like a brochure or website — and the owner insists that you not use it in your portfolio, you’re often faced with having to show some less impressive or distinctive work simply because it’s all you can show,” Blanton says. “I’ve worked with Hollywood celebrities and two or three people within the gravitational pull of the Oprah-sphere that would have been nice pieces in a portfolio. But the NDA prohibits naming names or using the final product in any public way, so I can’t use those examples.”
Would you willingly sign one of these agreements? Would an NDA stop you from using your social media profiles to find jobs and present your portfolio? Let us know in the comments section below.
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