Fashioning a social media policy in today’s climate can be both challenging and exhausting. With national policy being announced by the President via Twitter, social media touches our lives daily. The law, as usual, lags behind technology, putting employers in a precarious position when it comes to the intersection of social media and employment decisions.
Federal, state and local laws prohibit discrimination based on race, sex, religion and disability — all attributes that could be discovered from social media during the hiring process. In the past, many employers were able to defeat hiring discrimination allegations by claiming ignorance of the protected characteristic. From a name on a resume, for example, the employer could say it had no idea the person was Asian or Jewish or disabled. But disclaiming knowledge is nearly impossible if the hiring manager performs a social media search.
For example, a Facebook search could reveal an applicant’s race, sex, religion and/or disability. A picture of someone’s car posted on their Instagram account could reveal a license plate with the familiar wheelchair icon, or a bumper sticker for the Wounded Warrior Project, both of which might indicate a disability that is not otherwise obvious.
Making matters more complicated, antidiscrimination laws also target “associational” discrimination, or discrimination against a person not because of that person’s own protected characteristic, but because the person is close to someone who is protected. For example, an employer might worry that someone who posts about the challenges of having a special needs child would be less reliable in the workplace because of these (completely understandable) demands on that person’s time.
Being put on notice regarding information an employer would rather not know is even more likely when a manager “friends” or “follows” an employee on social media. This may provide the employer with information about religious beliefs or political affiliations that the employer might not want to know. Additionally, “friending” between management and subordinates can undermine professional relationships. Managers should err on the side of caution and avoid friending, following or engaging with employees on social media.
Conversely, burying your head in the sand and ignoring social media entirely is likewise fraught with risk. An employer might be liable for negligent hiring or retention if one of its employees “cyberbullies” another or engages in harassment online.
In recent years, the National Labor Relations Board (NLRB) has been at the forefront of addressing social media issues in the workplace. For the NLRB, the issue is employees’ right to discuss workplace issues among themselves in the very public forum of social media. In the NLRB’s view, it takes very little for employees to be engaged in protected, concerted activity online. Even “liking” a Facebook post can be enough to invoke federal employment laws. In Three D, LLC v. NLRB, an employee blamed his company on Facebook for not properly withholding taxes from his paycheck. The company then fired employees who simply “liked” that post. The NLRB found that this was protected, concerted activity because the comments were a part of a discussion among current employees about a workplace issue — even though anybody in the world could also see the activity.
Companies must also be wary because several states prohibit employment decisions that are based on off-duty conduct that might be reflected on social media. Employees have been fired for posting pictures of themselves online while inebriated or scantily clad. Firing someone for off-duty conduct is risky, unless there is a clear connection between the off-duty conduct and the workplace.
So, what is an employer to do? There are a few rules of thumb.
First, do not fire someone for off-duty conduct found on social media unless it has a meaningful impact on the workplace. If you can’t explain how the person’s social media post impacts his or her job, you probably shouldn’t make the decision to terminate that employee. Second, do not allow managers to just “Google around” on employees. Any use of social media research should be done by a designated person who knows what information to share and what not to share. Last, with constantly evolving laws and technology, a social media policy drafted by legal counsel and tailored to your specific company is a must.
Annette Idalski is a shareholder and Chair of the Employment and Labor Group at Chamberlain Hrdlicka (Atlanta). She defends employers nationwide against multi-plaintiff and single plaintiff lawsuits involving independent contractor status; wage and hour compliance; alleged discrimination involving sex, race, age and disabilities; sexual harassment; restrictive covenants; whistleblower actions and traditional labor matters. She may be reached at (404) 658-5386 or by email at firstname.lastname@example.org.
Peter Hall is a shareholder in the Employment and Labor Group at Chamberlain Hrdlicka (Atlanta). He counsels both large and small employers on a variety of labor and employment issues, including avoidance of discrimination claims, employee termination and union avoidance. Peter Hall may be reached at (404) 659-1410 or by email at email@example.com.
Kelli Church is an associate in the Employment and Labor Group at Chamberlain Hrdlicka (Atlanta). She counsels clients on benefits litigation, personnel policies and procedures, employment discrimination, termination of employees, worker’s compensation, wages and overtime, and other relevant issues. She may be reached at (404) 588-3438 or by email at firstname.lastname@example.org.