Efectos Del "Social Media" En El Derecho Del Trabajo

Luis Fernandez

A NEW LAW GOVERNING THE USE OF SOCIAL MEDIA IN EMPLOYMENT AND LABOR RELATED MATTERS IS REALLY REQUIRED? FOCUS ON RECRUITING PERSONNEL, DRAFTING INTERN POLICIES AND DISCHARGES

SUMMARY
Introduction 1
A. Concept of social media and Web 2.0 2
B. Current use of social media by employers 4
C. How social media is affecting the recruiting new personnel process 5
D. Currentpolicies to control employees using social media. 7
E. Discharges for using social media tools 9
Conclusion 10


Introduction
The fact that several employment and labor lawyers of the biggest law firms in the U.S. are focusing their practices on “social media” issues, tells us the impact that this new web-movement is having in the work field. Facebook already reached more than 800 millionusers and is constantly fighting with Google as the most visited website in the U.S. Twitter has over 175 million registered users and “professionals are signing up to join LinkedIn at a rate that is faster than two new members per second.” The issue here is whether a movement that is growing this fast should have its own regulation because at the present is governed by existing laws. Right now,the regulation surrounding social media websites comprises a group of laws ruling on, inter alia, discrimination, labor and civil rights and privacy rights. Thus, if a new law is required then, one point to be assessed is the interplay between Federal level and State level as to whether Congress should pass a federal law to govern Web 2.0 in relation to social media affecting employment matters,rather than each state doing it separately, or whether both branches should regulate the issue simultaneously?
Since this is the first document of a total of three papers, the work presented here will only address the concept of social media and how employers are dealing with the lack of a single instrument that controls social media in matters such as recruiting new personnel, drafting internpolicies and discharging employees for misuse social media tools.

A. Concept of social media and Web 2.0
Many people know Facebook, Myspace, Twitter, among others, but not that many know the concept of social media or Web 2.0. Recently the court of Appeals of Maryland defined “Social networking sites [as] sophisticated tools of communication where the user voluntarily provides informationthat the user wants to share with others… The act of posting information on a social networking site, without the poster limiting access to that information, makes whatever is posted available to the world at large”. Moreover, the General Service Administration Social Media Handbook defines "Web 2.0" technologies… as the collection of Web tools that facilitate collaboration and informationsharing. Web-based communities and hosted services include social-networking sites, video and photo sharing sites, wikis, blogs, virtual worlds, and other emerging technologies”.
In addition to this, Ms. Carolyn Elefant classified the websites belonging to the Web 2.0 generation, in four main categories depending on their use (see table 1). Using a classification table and examples helps to understandbetter the idea behind social media websites, because they move faster enough to make almost impossible to write an unchallenged definition.
Table 1.
Category Functions Examples
Directories Resume type listing with ratings by clients and colleagues LinkedIn
Communication Disseminates writings and information on an ongoing or real time basis Blogs, Twitter
Communities & Ratings SitesCollegial or less formal interaction at closed site Facebook, Facebook Fan Page, Foursquare, Yelp
Archiving & Sharing Sites Stores, shares and redistributes video, slides and documents with opportunity for feedback YouTube, Slideshare, Docstoc, Scribd, Flickr

B. Current use of social media by employers
Given the lack of a single instrument that regulates the use of social media both private...