Guest author Gary M. Gansle is a partner in Dorsey & Whitney's Labor and Employment practice, based in the firm's Silicon Valley office. Gary has a highly successful track record litigating employment-related claims on behalf of clients, and provides expert advice and counseling with respect to a wide range of employment law issues. He has established a nationwide training practice, conducting programs for managers and employees on employment-related topics such as "Managing within the Law" and "Preventing Harassment and Discrimination in the Workplace." Gary is also a contributor to Dorsey's Northern California startup blog.

While there are clearly some updates to how we manage the workplace, in context I don't think it is as revolutionary as many doomsayers would have us believe. The implications of social networking fall into three categories: pre-employment, during employment, and post-employment. Below is what I see as the key considerations.

Pre-Employment

I recommend against using social media to screen applicants because of the risk of inadvertently obtaining information that cannot lawfully be taken into consideration in the hiring process. However, if you are using social media to screen applicants, consider these steps:

• Do so consistently, rather than pick and choose who to screen.
• Have a low-level, non-decision maker screen first to filter out any protected class information that is inappropriate for decision makers to consider. Then have them report out only what can be lawfully considered.
• Don't friend applicants on Facebook to access non-public information.

During Employment

Consider adding new language to existing policies, such as your technology policy, code of conduct, harassment and discrimination policy, and confidentiality policy. The types of specific modifications to consider include:

• an unequivocal policy statement that abuse of social media can be grounds for discipline, up to and including termination.
• an express prohibition on disclosure of confidential and proprietary information and trade secrets.
• a directive that employees should keep company logos or trademarks off their blogs or profiles, and a request that employees not mention the company in commentary unless for business purposes (and then only with prior approval of the company).
• a prohibition on employees posting or blogging during business hours, unless for business purposes pre-authorized by the company.
• a request that employees bring work-related complaints to HR before blogging or posting about such issues.
• a prohibition on posting false information about the company, its employees, customers, affiliates, or business partners.
• a general instruction that employees use good judgment and take responsibility, personally and professionally, for what they publish online.
• a requirement that all employees who identify the company in their blog include a disclaimer that the views expressed are those of the blogger, not the employer.

Post-Employment

In this category, the single biggest issue is recommendations. Companies should consider updating their written policies on providing references (which should already limit such information to last position held and dates of employment) to include a prohibition on managers giving LinkedIn recommendations to employees or former employees unless pre-authorized by HR.

I suggest this not because I thrill at the Big Brother quality of it, but because of the risk of defamation claims for references that go wrong, and the fact that manager statements - even statements not on company letterhead or made through a formal corporate communication - are attributable to the company and may be inconsistent with legal positions confidentially being taken by the employer.

With the addition of some of these common sense updates to existing policies, your company can feel confident that the "revolution" of social networking won't have nearly the devastating impact predicted by most commentators.

Photo by Jason Pratt.