At first, employee social media use sounds like a matter of common sense. Candidates for a job should be careful what they post on social media sites, and make sure they’re not sharing any unsavory details about their past with potential employers. Once hired, employees shouldn’t “over-share” about their job responsibilities, supervisors, co-workers and clients, lest they find themselves searching for a new job. In general, this is solid advice for employees. However, in the current legal environment, employers also have to be careful how they handle social media use by candidates and employees.
Social Media and Recruiting
Social media sites like LinkedIn and Facebook can be powerful tools to find candidates, and to check the backgrounds of existing candidates and job applicants. But employers need to be careful about how they use social media in the hiring and recruiting process. In addition to useful information such as prior employers, educational background and skills, social media profiles can also reveal an applicant’s religion, disability status, sexual orientation, or other types of “protected category” information. To reduce the risk of a discrimination claim down the road, employers should avoid this information during the hiring process. To get only the useful information in front of hiring managers, consider using a non-decision maker to initially screen social media profiles before the interview stage. Also, since candidates of diverse backgrounds aren’t equally represented on some social media platforms, employers should avoid relying too heavily on social media in recruiting.
Harassment and Discrimination
Sexual advances, racial jokes and other inappropriate comments in the workplace can lead to liability for sexual harassment or a hostile work environment if not properly addressed. Employers also have a duty to investigate and take action if they become aware of potentially harassing content on social media. Before undertaking such an investigation, employers should be aware of laws that limit access to non-public social media content, such as the Federal Stored Communications Act and various state laws preventing employers from asking employees for their social media passwords. Generally, these laws don’t apply if the content is publicly available, or if an employee with access to the postings voluntarily hands over the offending posts to the employer.
Can We Terminate an Employee for a Disparaging Social Media Post?
Employers often ask whether they can terminate or discipline employees who use social media as a forum to vent about their supervisors, co-workers, and even clients or customers. The answer depends on what exactly the employee has posted. Employers certainly have the right to take action when such posts are harassing or discriminatory, reveal confidential information or trade secrets, or contain threats of violence. However, when it comes to gripes about supervisors and work conditions, the National Labor Relations Board has taken an aggressive stance that social media postings can be protected, concerted activity under federal labor law – even in non-union workplaces. For example, in 2014, the NLRB ruled that a sports bar illegally terminated an employee who “liked” a former employee’s Facebook post complaining about the bar’s owners, and illegally terminated a second employee who made a vulgar comment about one of the owners. The bar recently appealed that decision, arguing that the “like” and the comment were false, disloyal and profane, and should not receive protection. The outcome of that case bears watching, as it is one of the few NLRB social media cases that has been appealed. In the meantime, employers would be wise to consult counsel before terminating or disciplining employees for negative postings that also touch on terms and conditions of employment, such as wages, benefits, and treatment by supervisors.
What Should Our Social Media Policy Say?
Employers should have up-to-date social media policies that are as specific as possible about prohibited conduct. In its recent social media cases, the NLRB has targeted vague social media policies that include what seem to be commonsense provisions – such as prohibiting employees from posting disrespectful, negative or otherwise inappropriate content about other employees or management. According to the board, this type of broad language could discourage employees from engaging in activities that are protected under labor law, such as discussions about working conditions. Fortunately, the NLRB has issued guidance indicating that certain language – such as prohibitions on harassment, discrimination, and threats – does not violate the law. Policies can also prohibit social media use during work hours, and should advise employees that they have no expectation of privacy in postings or messages sent using company devices or networks. As the laws applicable to social media continue to develop, employers are best served by enlisting the help of employment counsel to make sure their policies comply with the law.
Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or firstname.lastname@example.org.