Employers can get in big trouble by using social media in these ways (among others):
1. Checking a job applicant’s LinkedIn profile or other social media account. Doing so creates the risk that the prospective employer will discover the applicant’s personal characteristics such as race, sex, age, or national origin. If the employer does not hire the applicant, up go the chances of a discrimination suit.
2. Following employees on social media. Some employees put a lot of personal information on their social media accounts. Employers need to create and follow clear, consistent, non-discriminatory practices in hiring, rewarding, disciplining and firing employees. They need to give their employees job descriptions that spell out the essential functions of each job, and their supervisors need to document the fact that each employee is being measured only against those objective criteria.
Even a well-documented employee file can be undermined at termination time if the employee can show that the employer was watching their after-hours online conduct. Don’t follow an employee unless there is a compelling business reason to do so (e.g., the employee uses a social media account to discuss the employer’s business) and you get the employee’s written acknowledgement that it is legitimate for the employer to follow them.
3. Terminating an employee for complaining online about pay or other working conditions. Employers can do a good job avoiding traps 1 and 2 and still get into trap 3. It may come to the employer’s attention that an employee has been using obscene language in her online posts. The employee curses out the employer (including her supervisor) by name, claiming that the company is cheating her out of her overtime pay and refusing to give her the best assignments because those are “reserved for the good old boys.” She then posts her own hourly wage and those of several co-workers.
The company has an Employee Handbook, which contains a Social Media Usage policy, a Personal Conduct policy, and a Confidential Information policy. The Confidential Information policy lists “Wage and Salary Rates” among the types of information to be protected.
The employee is terminated for violating all 3 of the policies. She turns around and sues for wrongful termination, claiming sex discrimination and also a violation of her rights under the Section 7 of the National Labor Relations Act. Warning – the Act has been held to apply to non-union as well as unionized workplaces!
The National Labor Relations Board (NLRB) and the courts have affirmed the rights of employees to discuss their pay and to complain about their work environment. The NLRB has sued employers for having employment policies whose confidentiality provisions it deems overly broad. Forbidding employees to compare and discuss their wages and other elements of compensation infringes on their ability to engage in concerted activity to seek higher pay and improved working conditions.
Recommendation to Business Owners and Executives:
Connect with a knowledgeable lawyer who is licensed to practice in your state, and get help managing your Social Media risks.
Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.
© 2018 Michael S. Oswald