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