By Michael Billok
As an employer, there is no such thing as
common sense when it comes to social media.
The technology has evolved so fast, and the
legal issues surrounding that technology have
developed so rapidly, that unfortunately it is
very easy for an innocent misstep to place you
on the wrong side of a federal investigation or
a civil lawsuit.
For example: Imagine that you have just
finished one of the worst applicant interviews
you have had in your career. You are so astonished
that this person could make it all the way
through the screening process to an interview,
that out of curiosity you decide to look at the
applicant’s LinkedIn profile. You read the applicant’s self-aggrandizement
on his profile for a few minutes, close the browser
window, and don’t give it another thought.
Until a few months later when you receive notice
from the Equal Employment Opportunity Commission
(EEOC) that the rejected applicant has
filed a charge of discrimination, claiming that
the company decided not to hire him because
of his age and religion.
How could this happen? Well, LinkedIn lets
users know who has viewed their profile, so the
rejected applicant knew that you viewed his
profile, which included both the year he graduated
from college several decades ago (from
which his age can be derived), as well as his
current activity as the chair of his local church’s
pastoral council.
You therefore cannot claim in your defense–
as you would have been able to if you had never
seen his LinkedIn profile–that you did not
know his age or religion. As a result, if this case
proceeds to litigation (and regardless of how
the EEOC rules on the claim, the applicant
can bring a private suit against the company),
instead of being able to make a quick motion
to dismiss at the outset, you may be subject to
many months of discovery before being able to
get the case dismissed on summary judgment,
or even having to go to trial.
That is an example of a clear-cut employment
decision–not hiring an applicant because he
presented terribly during an interview–that became
muddied due to the interviewer’s decision
to review the applicant’s social media accounts.
But what about cases where an employer
actually does want to take action because of an
employee’s social media activity?
As an example, imagine that you receive
notice that an employee has been publicly
bashing your company on her Facebook and
Twitter pages, in which she identifies herself as
an employee of your company. You review the
employee’s posts, which include rants such as
“This place sucks. All we want is a dollar raise, but
they won’t pay us anything but minimum
wage” and “These guys are the biggest bunch of
jerks–mandatory overtime today for the fourth
time this month!” Several of the employee’s
co-workers have liked, shared, retweeted, and
responded to her posts.
Easy decision, right? Especially where the
employee cursed out the company publicly.
So you terminate the employee without delay
and again, don’t give it another thought, Until
a few weeks later when you receive a notice of
charge from the National Labor Relations Board
(NLRB).
Your first reaction is, why the NLRB is
involved, when your company isn’t even unionized?
However, you quickly learn that the federal
National Labor Relations Act applies to all
workplaces–both union and non-union–and
that the NLRB lately has been focusing its enforcement
efforts on non-union workplaces like
yours that terminate employees based on their
social media posts.
You also learn that the Act makes it unlawful
to terminate employees for engaging in “protected,
concerted activities”–that is, actions
in which employees try to work together as a
group to improve their terms and conditions of
employment, such as hours and wages. So while
the employee used disparaging language, she did
it while engaging in activity protected by the Act,
and therefore the NLRB likely would order the
employee reinstated with back pay.
These examples are just the tip of the iceberg.
Social media presents a thicket of thorns for employers
to navigate, from those scenarios above
to employers that attempt to view employees’
private pages and accounts; what an employer should include (and not include) in its social
media policy; and which employees may post
on social media on behalf of the employer–and
what happens to those social media accounts
when those employees leave.
As these issues have developed, solutions
have also been developed. For example, in the
first scenario, the employer could have had a
policy prohibiting such searches, or implementing
a system where demographic information
from such a search does not reach the person
making the hiring decision. In the second
scenario, the employer should not have taken action against the employee when it was clear
the employee was talking about her wages and
hours in a forum with other employees.
It is impossible to list all of the solutions–or
even all of the potential issues–regarding social
media in employment in a single column.
Hopefully, however, this has provided some
helpful information to you about potential social
media issues that you may wish to review in your
workplace. And now you know to tread carefully.
There are thorns about.
Billok is a labor and employment attorney
with Bond, Schoeneck & King, Albany.
Photo Courtesy Bond, Schoeneck & King