Part Three: The Use of Social Media in Employment Practices.

OVERVIEW TO THE SERIES

Social media usage has revolutionized the way in which companies communicate with consumers. This Hartung Schroeder Practice Series is presented in five parts and provides practical guidance on the potential risks to a company attributable to the use of social media tools by the company and its employees. The Series explains:

THE USE OF SOCIAL MEDIA IN EMPLOYMENT PRACTICES

Companies must recognize the employment law implications of use of social media during each stage of an employee’s tenure with the company. Failure to use social media cautiously and intelligently may create legal exposure. For example:

  • Employment Decisions. If employers make adverse employment decisions based on protected class information learned through social media, they violate laws prohibiting discrimination. For example, an employer that learns about a candidate’s religion or sexual orientation through social media and decides not to hire the individual based on that information has violated anti-discrimination law.
  • Employee Privacy. Numerous states have passed laws prohibiting employers from requesting applicants’ and employees’ social media account information. These laws are deemed necessary to protect account holders’ privacy and to prevent discrimination that may occur once an otherwise undetected protected class characteristic is revealed.
  • NLRA Violations. The National Labor Relations Act (NLRA) protects the right of employees to exercise Section 7 Rights, including engaging in concerted activity to change their workplaces for the better. An employer that discovers through social media that employees or applicants for new positions are undertaking these activities and makes adverse employment decisions based on this information has violated the NLRA.
  • Background Checks. The Fair Credit Reporting Act (FCRA) and its state equivalents regulate employers’ use of consumer reports in conducting background checks. Although an employer’s in-house search of online resources is unlikely to fall within the federal FCRA, state requirements may be more stringent. For example, an employer’s own search of social media that results in an adverse employment action taken without proper notice and disclosure compliance may create liability under broader state law. In addition, under the federal law, failure to provide required notice for relying on information in a consumer report, such as social media findings, may lead to liability.

Companies using social media in hiring decisions and background checks should:

  • Maintain consistent protocols for social media screening of applicants regardless of their race, gender, or other protected class status to avoid disparate treatment liability.
  • Develop a basic understanding of the activities protected by the NLRA to comply with those protections and respect the rights it protects.
  • Develop a basic understanding of the requirements of the FCRA and its state equivalents to promote the lawful use of background checks.
  • Access privacy-protected electronic resources only with proper authorization to avoid liability under laws governing electronic resources, such as the Stored Communications Act, state-specific prohibitions on seeking such information, and common law privacy rules.
  • Comply with the terms of use of social media websites.
  • Check facts and ensure that employment decisions are made using accurate information and account for the prevalence of false or misleading information in social media.

In addition, companies using social media in termination and adverse employment action decisions should:

  • Not take retaliatory adverse employment action because of protected activity expressed through social media. It is common for federal and state laws to prohibit retaliation for the exercise of rights protected by statute, and employers considering terminations, demotions, or other adverse employment activity should ensure that the reason underlying the decision does not violate employee rights.
  • Understand that some states have enacted laws barring employers from requesting applicants’ and employees’ login information to social networking sites.
  • Comply with the NLRA in the use of social media for adverse employment decisions. If employees use social media to communicate about union activities or exercise other Section 7 Rights (such as discussing conditions of employment), refrain from restricting employee speech or taking adverse employment actions that could violate the statute. Even non-unionized workplaces must respect rights conferred by the NLRA.

 

Continue to Part Four: Issues Associated with Employee Use.