Hiring, Firing, and Social Media in the Workplace: Lawyers Sound a Note of Caution

Have you heard? Social media is big! No, really, it’s true; and that includes BIG in the workplace and workforce.

Screen shot 2011-09-30 at 3.27.03 PM.png Don’t take our word for it, we’re just reporting what we read on Facebook, Twitter, LinkedIn, and our iPad (which needs an 2.0 upgrade ASAP).

For example this, from a much-shared article (Employers are liking — and hiring — social media workers) in the Los Angeles Times earlier this week:

“‘This was the year when companies large and small began to realize the importance of social media, and there has been lots of investment in social media,’ said Augie Ray, a former Forrester Research analyst who now handles social media for insurance group USAA.”

Social media is (are?) big in the workplace even if companies large and small haven’t yet begun to understand the importance of these robust communications platforms. Why? Because their employees are on LinkedIn, Facebook, and Twitter. And that (according to lawyers and law firms on JD Supra) is when things can get sticky.

Culled from recent updates on JD Supra, here’s a look at some of the legal issues that can arise from social media in the workplace.

On Hiring & Firing

“Every human resources staff member knows that, especially when interviewing a potential new employee, some topics are strictly off limits. Asking one of these ‘off limits’ questions can put your company at serious risk of being sued for discrimination. The trouble is, by resorting to the use of social media, this kind of ‘off limits’ information can be collected from a potential employee even before his or her interview…” (From The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree by McNees.)

“There are subjects that are considered off limits for employers to ask job applicants about. Under federal law, Title VII of the Civil Rights Act prohibits discrimination when making employment related decisions. A company cannot make hiring, discipline and termination decisions based on any of the following protected factors: race, color, national origin, religion and gender. The Age Discrimination in Employment Act (ADEA) adds to the list with a prohibition on discrimination against individuals who are 40 years or older. And, finally, the Americans With Disabilities Act of 1990 prohibits discrimination against “qualified disabled” individuals. Employment decisions are defined broadly and include promotion, demotion, compensation, and transfers.

It is very easy to see how someone with a Facebook page may post about these protected factors. Thus, the challenge for employers who are researching job applicants, or monitoring the social media activity of their employees, is not to let this protected status information bleed into their employment decisions. Under federal and state law, employers should not make employment decisions that are “motivated by” a person’s membership in a protected class…” (From Social Media Research + Employment Decisions: May Be a Recipe for Litigation by Sheppard Mullin)

In the Workplace

“If you’re planning to monitor your employees, do so with caution. Although workplace surveillance is legally acceptable to some extent, the more invasive the surveillance becomes, the more likely it is to be considered in discordance with privacy laws. Companies should have policy explicitly describing employees’ diminished expectations of privacy. Policies should state that any personal communication on social networking sites conducted at work is not private, that computers and any other devices are to be used solely for company business, that communications are monitored to ensure compliance, and that these policies apply not only to internal communications, but also to external cloud-based communications.

As a caveat, though, be warned that social media policies cannot uniformly discourage employees’ rights to concerted activity. The National Labor Relations Board (NLRB) actively enforces employees’ rights to discuss working conditions. People today use social media to organize, which can be associated with the right to unionize and the right to congregate, neither of which may be legally denied…” (From Draw the Line by attorney Curtis Smolar at Ropers Majeski)

Enter the NLRB

The National Labor Relations Board has indeed written much about social media usage in the workplace – most recently issuing a series of memoranda on the topic. Much of the Board’s commentary intersects with online activity and employee rights protected by the National Labor Relations Act (NLRA):

“In at least four cases, the NLRB overturned the termination of employees based on their social media activities because the activities involved active, online conversations among multiple employees regarding work conditions. Therefore, they were ‘concerted activities’ for which the employees could not be terminated under Section 7 of the NLRA. The NLRB also found that several anti-blogging and disruptive behavior employment policies were illegal under Section 8(a)(1) of the NLRA on their face because the policies were blanket prohibitions of protected activity.

There are several commonalities worth noting among these cases. First, they all involved employees who criticized specific employment practices or work conditions, which is traditionally viewed as protected activity under the NLRA. Additionally, all of these employees engaged in online discussions after work hours, on their own personal computers and media pages, and off work property, which are all factors the NLRB considered in gauging whether the online activity was protected. Most importantly, every case involved online discussions among multiple employees, which made the discussions ‘concerted activities’ under the NLRA. The involvement of multiple employees appears to be the most important factor in determining whether the activity is protected. Additionally, the NLRB did not consider the minimal use of derogatory language in an online post to be an adequate reason for termination.” (From Social Media and the National Labor Relations Act: A Trap for Unwary Employers by Bryan Cave)

So What’s an Employer To Do?

Proceed with caution, it would appear. And have a solid knowledge of which employee rights are protected, including during the hiring and firing process. Common sense goes a long way, too. Do you have an internal social media policy that maps well to employee rights? That might well be a good first step. From law firm Fisher & Phillips:

“The lesson to be taken from these Advice Memos is that disciplining employees for comments they make in social media is neither prohibited, nor is it without risk. Any decision to discipline or terminate employees for social media postings should be carefully weighed and reviewed with your labor counsel before implementation. It should be some comfort to know that, based on a careful reading
of the most recent Advice Memos, the rules for determining when activity is protected have not changed. Purely individual gripes aired through social media are no more protected now than they were before Facebook became the rage…” (From Not As Bad As We Feared: NLRB Issues Guidance On Social Media.)

Also see: The Best Defense is a Good Offense: Proactive social media policies and what they can do for you by Len Brignac at king Krebs)

We regularly compile legal roundups on this topic. Read them here:

Social Media in the Workplace: an NLRB Guidance Update
Social Media and The Law: Friday Reading List
Social Media and the Law – Employer Dos and Don’ts from the NLRB
Social Media in the Workplace: Legal Issues, Business Policies

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