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.
Billok is a labor and employment attorney with
Bond, Schoeneck & King, Albany.
Photo Courtesy Bond, Schoeneck & King