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Why social media is a ‘legal minefield’ for employers

October 9, 2012

Article courtesy of SBAM Approved Partner AdvanceHR

When it comes to social media, employers face a variety of land mines. To protect themselves, they are advised to have a policy covering social media but the factors involved are not as simple as they might seem. This article provides four hypothetical situations employers might face, along with 18 specific components to consider in a social media policy.

“Social media is a legal minefield for employers.” That attention-grabbing statement comes from Edward Loughlin, a trial attorney for the EEOC in Washington, D.C.

Yet crafting policies today is tough, Loughlin explained, because of various federal, state and local laws. Your organization’s policies may provide protection under the laws enforced by the EEOC, but they may violate laws enforced by other government agencies.

For example, compiling information about an applicant from the Internet may lead to violating the Fair Credit Reporting Act, enforced by the Federal Trade Commission, which requires employers to take certain steps when obtaining background information in consumer reports.

Another example: Healthcare providers have to ensure that employee use of social media sites does not violate patient privacy protected under the Health Insurance Portability and Accountability Act (HIPAA).

In a recent EEOC training session, Loughlin presented these hypothetical situations faced by employers:

Situation #1: A restaurant is hiring a bartender. The manager narrows the choice to two candidates with extensive experience — Jane and John. The manager isn’t sure who to hire so she conducts an Internet search to see if anything online will help.

She finds a blog that appears to be authored by Jane. After reading it, the manager discovers Jane is five months pregnant and was fired by her previous employer. In her interview, Jane said she is still employed. The restaurant hires John.

Questions: Did the employer violate the Pregnancy Discrimination Act? The rejection of Jane’s application at this stage “suggests a discriminatory motive,” Loughlin said.

Can the employer defend its decision to reject Jane because she lied on her application by not disclosing she was fired? That would require an examination into the employer’s regular practices and whether the applicant actually lied, according to Loughlin.

Situation #2: A manager occasionally monitors employee Facebook pages. On one account, which is not private, the manager finds recent posts in which an employee criticizes a co-worker’s job performance. The manager fires the employee for publicly airing the company’s dirty laundry.

Questions: It does not appear the manager has violated EEOC laws, according to Loughlin, but are any other laws violated? The manager has probably violated Section 7 of the National Labor Relations Act (NLRA), which is enforced by the National Labor Relations Board (NLRB), Loughlin explained. Keep in mind that Section 7:

  • Applies to both union and non-union jobs.
  • Has been found in the social media context to protect an employee’s right to post on websites related to working conditions and wages, or to engage in “other concerted activity.”
  • Protects an employee’s right to self-organize or assist in labor organizations. It also safeguards an employee’s right to assist in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.

In short, Loughlin said, Section 7 “protects employees who discuss working conditions around the virtual water cooler.”

Situation #3: A manager accesses a private Facebook page and sees a photo of an employee and her sister before a “Race for the Cure.” They are wearing pink t-shirts that state they are racing in memory of their mother and sister. Under the photo is a caption about the steps the pair are taking in light of the family history of cancer.

Question: What law does this implicate? The Genetic Information Nondiscrimination Act, which makes the acquisition of genetic information (including family medical history) unlawful. Employers have to be careful that they don’t take actions that can violate this law.

Situation #4: An African-American employee works at a restaurant. He becomes disenchanted at work. He believes a white co-worker with less experience has been promoted over more qualified African-American employees and there is a history of race-based promotion. He also contends that the employer’s lack of health insurance results in sick workers coming in when they’d be better off at home.

The employee starts a website to complain about his employer. There, he publishes his beliefs about race-based promotion decisions. He also posts two identical pictures of items sold by his employer. One is captioned, “food made by a healthy employee.” The second is captioned, “food made by a sick employee.” He asks co-workers to join him in battling the employer.

Question: Has the employee engaged in protected activity? According to Loughlin, “he probably has engaged in protected activity under Title VII because he is opposing practices (promotion and race) that he reasonably believes are unlawful.”

In addition, the employee is engaging in protected and concerted activity under the NLRA’s Section 7, including discussion about working conditions and seeking others to join him.

As far as the food photos, similar circumstances existed in a recent case. An NLRB administrative law judge ordered a fast food restaurant to re-hire workers it fired for putting up flyers of sandwiches made by “sick” and “healthy” workers. The flyers highlighted a policy of not providing employees paid time off if they were sick and requiring them to find their own replacements if they needed time off due to illness.

A Social Media Policy: 18 Components to Consider

A well-crafted social media policy can help protect your company. Under a social media policy, Loughlin said, employers should:

    1. Define the scope and coverage. Consider the reach of social media, including blogs, message boards, and chat rooms as well as posting comments, pictures, or videos on sites such as Facebook, Twitter and YouTube.

    2. Cover communications regardless of whether they are sent from a personal or employer-issued device.

    3. Have a policy driven by the nature of the organization. For example, technology company employees may be expected to post on social media sites during work hours while employees in other industries might be prohibited.

    4. Advise employees that they use social media sites at their own risk and are personally responsible for their content.

    5. Prohibit the disclosure of trade secrets and confidential information, such as company financial information.

    6. Caution employees to respect copyright laws.

    7. Consider banning employees from posting references on professional networking sites such as LinkedIn. If personal references are allowed, consider requiring a disclaimer that references are not the view of the employer.

    8. Prohibit inappropriate or offensive conduct that violates company policy (for example, making discriminatory or harassing comments and disclosing trade secrets).

    9. Remind employees that if they are victims of inappropriate conduct by co-workers through social media to promptly report it to the employer.

    10. Consider guidelines on supervisor/subordinate interactions on social media.

    11. Restrict the use of employer systems and equipment to “business use” only.

    12. Reserve the right to monitor occasional personal use, reserve the right to monitor and review it. Expressly advise employees not to access, communicate, send or receive information they wish to keep private and confidential.

    13. Explain that employees have no expectation of privacy in their use of the equipment or systems.

    14. Make clear that all equipment, systems, material and information created, sent, received, saved, reviewed, accessed or stored are the property of the employer.

    15. Advise employees that information accessed or maintained on an employer’s system may be subject to disclosure in court or government investigations.

    16. Clarify that the employer’s failure to monitor technology use does not constitute a waiver of its right to do so.

    17. Explain that using equipment and systems for conduct prohibited by company policy will subject employees to discipline. In addition, unlawful conduct may be reported to law enforcement.

    18. Secure advance written authorization that use of the system or device constitutes consent to monitoring and review of all content.

As you can see, social media contains numerous land mines for employers. To make matters worse, the law continues to evolve. In recent months, at least two states (Maryland and Illinois) have passed laws prohibiting employers from asking applicants for their social media usernames and passwords — and other states are considering similar laws.

Consult with your attorney and HR advisers in crafting a social media policy and periodically review it to ensure your organization remains in compliance with the latest developments.

Federal Laws Enforced By the EEOC that Could be Violated though Social Media:

    Title VII of the Civil Rights Act;
    Americans with Disabilities Act;
    Rehabilitation Act;
    Pregnancy Discrimination Act;
    Equal Pay Act;
    Age Discrimination in Employment Act;
    Genetic Information Nondiscrimination Act; and
    Lilly Ledbetter Fair Pay Act.

Examples of other laws that could be violated:

    National Labor Relations Act;
    Fair Credit Reporting Act;
    Stored Communications Act;
    Health Insurance Portability and Accountability Act; and
    State laws.

Need help creating a social media use policy?  SBAM has services that can help you.

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