Social media

June 12th, 2018 by Frank Day, Robbin Hutton and Jessica Asbridge at Ford Harrison LLP


This blog is an excerpt from our book Hiring, Firing and Discipline for Employers, authored by Frank Day, Robbin Hutton and Jessica Asbridge at Ford Harrison LLP. For more state specific information, go to the Products tab above and subscribe to the Human Resources Manual for your state.

 

For purposes of this chapter, social media includes all electronic social networking sites through which applicants and employees may congregate, such as Facebook, Twitter, various blog-hosting sites, and LinkedIn.  While there are hundreds, if not thousands, of such sites, the law regarding the use of social media in employment is still in its infancy.  As there have been very few reported court cases regarding it, this chapter is limited to discussing potential issues that may arise in using social media in employment decisions, rather than providing definitive answers regarding such usage.

Generally, it is easiest to think about the employment issues regarding social media in two timeframes

1.  pre-hire screening

2.  post-hire.

Pre-hire screening implications

The use of social media in the pre-hire screening of applicants for employment is fraught with peril.  It is especially dangerous during the pre-interview stage, though risks continue to linger even thereafter. It is impossible to anticipate every single issue that might arise from using social media during pre-hire screening.  However, the following sections address some of the major concerns.

Privacy

Many social media sites, including Facebook, contain postings that are available to the general public and those that are only available to a select group of persons.  For instance, on Facebook, certain portions of a person’s “page” are only available for viewing to persons who have been made “friends” of the poster.  While it may not raise privacy implications for a potential employer to view the public portions of an applicant’s Facebook or other social media page, it could cause privacy issues if the potential employer somehow was able to view the private portions of the page.  For instance, if a potential employer coerced one of its employees who were “friends” with the applicant to provide access to the private portions of the applicant’s page, it might constitute a legally actionable invasion of privacy.

Discrimination

Persons using social media commonly post pictures of themselves that may reveal their race, sex, and national origin.  They also often post information about their birth date, religion, and marital status.  It would not be legally prudent for a company to ask for such information on an employment application.  It is equally imprudent for a potential employer to search social media for such information about applicants, especially before an interview has been conducted. Using such information when making employment decisions could result in discrimination claims under Title VII of the Civil Rights Act (Title VII).

Disabilities

Persons using social media frequently post information about their medical conditions and/or disabilities.  Under the Americans with Disabilities Act (ADA), companies cannot make inquiries of applicants that are likely to reveal the existence of a disability until the post-hire/pre-employment time period.  It likely would be a violation of the ADA for a potential employer to utilize social media to find out such information during an earlier time period.

Sexual orientation

Although not currently protected at the federal level, many states and even some municipalities, prohibit discrimination based on sexual orientation.  Persons using social media frequently either specifically state their sexual orientation or make posts about events in their lives that make their sexual orientation obvious.  Potential employers who use social media in the hiring process open themselves up to potential claims that the real reason an applicant was not hired was because the potential employer had learned of the applicant’s sexual orientation.

Spare time pursuits

Some states prohibit companies from refusing to hire applicants based upon certain specified spare time pursuits. For instance, some states, especially some that produce tobacco, make it unlawful for a company to refuse to hire someone based upon their tobacco use.  Since social media users frequently post comments or pictures regarding such spare time activities, a potential employer may face a lawsuit for refusing to hire someone who it found out had engaged in such protected pursuits through use of social media during the hiring process.

Fake pages

It is not uncommon to find fake social media pages, where someone creates a social media page claiming to be someone else, such as a friend, enemy, co-worker, or celebrity.  Students in high school and college are especially known for creating such pages as pranks.  Since it is difficult, if not impossible to determine whether or not the social media page being viewed is legitimate, companies should be especially leery about using any information learned from them in employment decisions.

It is generally recommended that employers do not investigate social media sites before hiring a candidate.

Post-hire implications

As can be expected, some of the pre-hire implications of using social media will also apply to the post-hire time period. Some of the additional major post-hire issues with using social media in employment decisions are discussed herein. 

Discrimination

The most common area of concern for employers under Title VII in the post-hire timeframe is their employees’ use of social media to unlawfully harass each other or others.  Statements made online can constitute legally actionable harassment just as oral statements can.  In fact, since the statements on social media sites are electronically printed, they are even more dangerous.

Protected activities

Under the National Labor Relations Act (NLRA), even non-union employees can engage in “protected concerted activity” regarding certain aspects of employment (such as discussing working conditions).  Companies should be aware that employees likewise have a right to do so using social media. Therefore, companies should be careful not to discipline employees for making statements on a social media site that might constitute protected concerted activity under the NLRA.

Whistleblowers

Most states prohibit employers from discharging employees because they report that the employer has engaged in unlawful activity.  Depending upon the wording of a state’s whistleblower statute, it is possible that an employee’s statement in social media that his/her employer is engaging in unlawful activity might be protected.

Defamation

Employees can make defamatory comments in social media about other employers, vendors, or customers that might subject the company to potential liability.  

Trade secrets

Employees sometimes post confidential trade secret information in social media that belongs to their employers or, sometimes even competitors or vendors, which can create liability for the company.

State laws

Some states have enacted laws prohibiting employers from requesting social media passwords from applicants or employees or otherwise demanding access to employees’ social media accounts. 

Social media policy basics

Many companies are now implementing social media policies.  Some basic tips for doing so are as follows:

•   A social media policy should advise employees of what is and is not permissible in their postings.  For instance, employers should make it clear that their other policies (such as harassment, equal employment opportunity, and the like), also apply to postings on social media.  Employees should also be warned not to post information that is defamatory or breaches privacy or trade secrets.  However, employers should ensure that any policy is compliant with the National Labor Relations Act (NLRA) and does not broadly prohibit employees from making disparaging comments about the company, from using company logos, or disclosing confidential or proprietary information. 

•   Employers should consider requiring employees to include a disclaimer in their social media postings indicating that the views expressed are theirs alone, and do not represent those of the company.  This is especially important where the employee has indicated the name of his/her employer.

•   Employers should consider including a statement advising employees to respect copyrights when posting on social media.  Copyrighted material should only be posted after obtaining permission from the copyright owner. 

•   Employees should be warned not to link or otherwise refer to the company website without obtaining the advance written permission of the company.

•   The company should reserve the right to monitor websites, social networking sites, and blogs.

•   Employees should be advised that their social media activity cannot interfere with his/her job.  In fact, many employers may want to entirely prohibit employees from engaging in social media networking during work time



HR Webinars
Terminations Got You Down? 5 Tips to Tighten Your Termination Tactics
December 17th, 2018 at 12:00pm CST by Brian T. Benkstein at Fredrikson & Byron

Unconscious bias - whether you realize it or not
December 18th, 2018 at 11:00am CST by Margaret A. Matejkovic, Esq. at Kastner Westman & Wilkins, LLC


HR Articles
SavE tHE offICe hoLidAY PArTy!
MeToo, avoiding women, and the modified Mike Pence Rule
Carnac the Magnificent says – Politicussin
Non-competes for non-skilled – non-productive, non-legal, non-enforceable?
Discrimination CHARGE! – Step 3 Cause or no cause, because you gotta do something
Discrimination CHARGE! – Step 2 Go Kim Possible for the investigation phase
Discrimination CHARGE! – Step 1 Don't panic, ask questions
Depression – what can an employer do?
Employers beware - what you say can and will be used against you
Holiday stew – ingredients for a happy and non-litigious holiday
MO - The weed du jour - marijuana médicale
Biometrics in the workplace - not a measure of bios accumulated by an employee
Thanks-giving isn't just about turkeys - include the good employees too
The best "stay" to help you retain employees
Overtime, daylight savings time and circadian rhythyms
Controlling the political speech of buttons*
Cursing, surfing, weapons, gadgets – illegal, inappropriate or OK?
How to Ghostbuster a new hire or applicant
Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)
Costumes, booze and the Great Pumpkin – beware the office Halloween party
Disability – Dr. or employee approved?
401(k) plan + payroll provider = 401k good things
Disability/pregnancy practices – what not to practice
Bad hire! Bad, bad hire!
TN – A drug-free workplace program is good
Open enrollment – personalizing perks pays off
Unpaid intern – depends on who benefits
The #1 office perk is . . . ?
FMLA leave before being eligible for FMLA leave
IL – Required expense reimbursement for your employees, not Bill Self
Help hiring holiday help here
Are the new DOL opinion letters like noses?
Public disclosure of confidential information is easier than you think
Bad mix – accommodation request and firing
If religious accommodation and a flu shot both equal angst, is that the transitive or substitution property?
Workplace shootings – 20 can-dos to prevent them
No call/no show shows. No what about it.
List 10 Up: Top tips for starting a workplace incident interview
Mr. Freeze unveils National Security Freeze tagline: "They can't steal your identity if it's frozen"
If it's called a dress code, can I wear pants?
I've changed my name – to Optimus Prime
TN: Conceal and carry means post to prohibit or permit
I'll take "ADA in 5s?" please Alex
Swearing at work – 7 rules
Is that red light flashing?
Four-legged office mates and the pawternity policies they benefit
Notice: notices and forms for FMLA that were already expired now updated virtually unchanged
Don't feel ripped off when you get ripped off – get even
School-related parental leave does not mean you forge a note from your kid
NY: Draft model sexual harassment policy/training released
Discipline - Demote - Depart or Communicate - Counsel - Channel
ICE audits II – FAQs to make you wiser
Round up stew: sick leave, harassment, non-compete, etc.
Identifying trade secrets does not mean figuring out how to barter better
ICE audits have nothing to do with freezer police
Being at work full time is not an essential function of a job?
List 10 up: Positive employee relations training: reap the benefits of engagement
Employment agreements – what to do before you do
Background checks of the future are continuous
Treating service animal requests (always treat the animal)
Prepare for saying "No" – you need to decide how to refuse service
List 10 up: What's the deal with employee handbook rules?
I cannot tell a lie . . . you're fired for cutting down the cherry tree
Milk Stork delivers for working mom's and their baby
Job tasks and essential functions under the ADA
Who are you? Why are you here? Personality testing?
No, you can't sleep on the job
Technology driving the hiring process
Should you give your employees a little Slack – or do they have enough already?
"We need to talk" isn't any easier to say than to hear
Bet employers must make: call and raise your minimum wage
Zero tolerance for "zero tolerance" policies
Ralph Waldo Emerson as a productivity consultant
PS: PTSD IRL*
Is the employee "disabled" under the ADA?
The six step DOL audit polka
PTO on the house!
New rules for work rules
Dr. Strangelabor or: How I Learned to Stop Worrying and Love the Millennial
Did Bartleby the scrivener write his own job description?
"Treating" disgruntled or bad behaving employees
Hiring under the age of 18
DO NOT LICK THE BRAIN! and other obvious stuff
Helping your employees save for emergencies
Right to bare arms in the workplace
#MeToo quiz
Under standing desks
How to approach an employee showing signs of cognitive decline
Dress codes should not be encoded
Foul language *
Rorschach, Horshack and Abednego
Don't ask a woman the gender of her child, especially. . .
Guidelines for a valid no-solicitation/no-distribution policy
All aboard the Love Train for long-term onboarding!
Gender and workplace bathrooms
No FMLA for pet's death
Personal hygiene in the workplace
Yes Virginia, there is a St. Patrick's Day in Ireland
Master the modern method for managing March Madness
Drug testing in The Office
Background checks
"Thank you" and "I'm sorry" – meaningful, simple and impactful
Michael Corleone HR tip for the day
S'not flu or it is, doesn't matter
Be prepared for ICE raids
Looking for employees: an untapped source of talent
Calling Dr. Love(less)
Non-exempt employees – what counts as wages?
HR is not a happy accident
Do new hires have to be a culture club fit?
Remote workers and telecommuting
When former employees ask for references
Model written lock out/tag out program
Wrong table cat
They might be giants . . . transforming healthcare?
Conducting internal I-9 audits
The Nebraska Chamber has issued a W-2 challenge to state taxpayers
The impact of super bowl(ing)
12 steps to handling violence in the workplace
Workplace retaliation: don't give in to the Dark Side
Would you really want to work with a bunch of yous?
What is the ADA?
Monty Python should not write your job descriptions
FMLA definitions
Unemployed or wear a bra – are those the only choices?
What "government shutdown" means for employers
An intern by any other name
FMLA - "leave" as in "leave the employee alone"
 “M,” “F,” Or “X”? Nonbinary Gender Designations in the Workplace
Sexual harassment – can't find it – what now?
Probationary periods
Employee contracts
Introverts
How to treat fringe benefits for employees
Attendance policies
Different repeal
Temporary and leased employees
Birthdays in the workplace
Needy employees
Holiday parties - acknowledge, avoid, assume (nothing)
Dress codes: who, what, wear
Punch clock
Nepotism: favoring relatives and friends in the workplace
Year-end performance reviews
Hiring interviews
The Form I-9 has changed… Again!
Service dogs at work
Bring your own gun
Social media
Year-end or holiday incentives
Arizona sick day policy
Paternity leave
HRsimple spotlight - Fiona Ong
Permissible post-accident drug testing
Paid family leave: a growing trend
Politics in the workplace: how to remain legally compliant during election season
Termination Series: Communicating the reason for discharge
It’s only a matter of overtime
Interview with attorneys at Kastner Westman & Wilkins
Valentine's Day heartaches around the office
Safety and health tips
Wearable technology
Favorite HR sites
Back to school time is here!
Vacation policies and time off
Interview with author J. Hagood Tighe
Non-compete agreements
Workplace romance
Holidays
Bullying in the workplace
Employment references
Telecommuting or remote (control) workers
Social media and employment
Performance evaluations
Breaktimes
Interview with attorneys at Wilson Worley PC
Interview with attorneys at Knudsen Law Firm
Interview with Kathy Speaker MacNett
Firing, a job to do right the first time
Job advertisement do’s and don’ts
Employee handbooks – getting a handle on your policies
Technology in the workplace
Interview questions: do's and don'ts
Employee personnel files