THE USE OF SOCIAL MEDIA IN CONNECTION WITH EMPLOYMENT DECISIONS: TIPS AND TRAPS FOR THE UNWARY

Published on: September 18, 2018

The pervasive use of social media in our day-to-day lives is undeniable. It is unsurprising then, that employers, both large and small, are using social media for hiring, disciplinary and termination decisions. However, many employers do not realize that there are inherent risks in doing so.

Nearly all employers know that it is unlawful to discriminate against a prospective job applicant based on their membership in a protected class. However, social media accounts typically include information such as age, race, gender, national origin, religious affiliation, or other protected class information, and if an employer’s review of a prospective employee’s social media account influences their decision (unwittingly or not), to interview or hire someone, then they may be exposed to liability for discrimination.

Before employers even consider using social media in connection with their hiring decisions, they should develop a social media screening policy to ensure that consistent and non-discriminatory practices are used. To that end, if social media screening is used, it should be done by a third party, preferably an independent third party outside of the control of the employer, but if necessary, by someone in the employer’s human resources department. Also, if an employer is going to use social media screening, they should do so later in the hiring process, i.e., after the initial interview process and during the background check phase.  Further, when developing a social media screening policy, employers be mindful to establish clear boundaries for the search, meaning, is the employer going to use a generic internet search engine, such as Google, or does it also intend to search Facebook, LinkedIn, Instagram, Twitter, etc.? Additionally, an employer’s social media screening policy should be clear, in that the purpose of the screening is solely to obtain information which is relevant to the position for which the prospective employee is applying, and not to obtain information about what the prospective employee may do in their spare time, unrelated to the vacant position. During the social media screening process (which is to be used consistently) for all applicants, the person conducting the screening should screenshot and document their search, and once the screening process is complete, a report should be provided to the person in charge of hiring, for use in the hiring process. However, the report itself should not be solely determinative as to whether a person is ultimately hired, because information obtained through social media is not always entirely accurate and people may portray a different persona online than in person, and because there are still of course a number of individuals whom simply choose not to use social media.

Once the hiring process is completed, an employer should retain all hiring records, including the social media screening report, and screenshots documenting the social media sites that were visited during the screening process, so that the employer will have documentation to support its ultimate hiring decision if later faced with a claim for discrimination by an unsuccessful job applicant.

Employers must also be wary of using social media to make any termination or disciplinary decisions against existing employees. Equal protection violations are not limited to prospective employees.  Terminated employees can also file discrimination claims when the information gleaned through social media sites proves to be the basis for disciplinary decisions and/or termination.

Moreover, if an employer discovers that an employee is complaining about working conditions on their social media accounts, that may be considered protected “concerted” activity under the National Labor Relations Act, and employers should be careful about taking any immediate reactive response to such comments without due consideration for the context in which the statements were made. The National Labor Relations Board (“NLRB”), considers the use of social media to engage in a shared or collective dialog and to express shared concerns about important terms and/or conditions of employment, to be “concerted,” and therefore protected, activity. A determination as to whether a social media post constitutes protected or “concerted” activity is often fact specific. Generally speaking however, a social media post complaining about the eating habits or persona hygiene of an employee’s supervisor or co-worker will likely not be protected or “concerted” activity. Further, social media posts between persons whom are not co-workers, will likely fall outside of definition of “concerted” activity, but complaints about working conditions may be.

Many states have passed legislation barring employers from requesting access to the personal social medial accounts of current or prospective employees. Bill S.2346 entitled “An Act Relative to Social Media Privacy Protection” (the “Act”), is currently pending before the Massachusetts House Committee and Ways and Means. If passed, the Bill will prohibit employees from compelling an employee or a prospective employee from disclosing a user name, password or other means for access or to provide access through a user name or password to a personal social media account, or to compel an employee or prospective employee to add a person, including but not limited to the employer or to an agent of the employer to the employee’s or prospective employee’s list of contacts associated with a social media account as a condition of employment or in consideration of employment. Further, if passed, the Act will prohibit an employer or prospective employer from requiring, requesting or coercing an employee or prospective employee to reproduce photographs, videos or information contained within a personal social media account. Under the Act, employers may not take or threaten any adverse action against an employee or prospective employee based upon their refusal to disclose information contained within their social medial account (unless otherwise permitted by law), or for refusing to add the employer or an agent of the employer to a list of contacts associated with the personal media account. Nothing in the Act however, if passed, will apply to publicly available information about an employee or prospective employee and it will not prevent an employer from disclosing such publicly available information. Further, the Act will not prohibit employers from promulgating lawful workplace policies governing the use of the employer’s electronic equipment, including policies regarding the use of internet and social media. Moreover, if the Act is passed, it will not prevent employers, upon receipt of “specific relevant information,” from requesting access to an employee’s or prospective employee’s personal social media account to ensure compliance with “applicable state and federal laws, municipal ordinances and by-laws, rules and regulations, legally-mandated investigations of an employee’s or prospective employee’s actions, employer prohibitions against unauthorized transfers of an employer’s proprietary information or other nonpublic financial information, judicial directives, or rules of self-regulatory organizations as defined in the federal Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(26) or due to the reasonable belief of the presence of an immediate danger or death or serious bodily injury to any person.” Before an employer may request access to the social media account under any of the exceptions to the Act, they must notify the employee or prospective employee of the request and the basis therefore. Further, the employer may only make the request if they have no other means of obtaining the relevant information, and the information obtained through the employee’s or prospective employee’s social media account, shall be solely used for purposes of the investigation and any access shall be limited to only identifying relevant evidence.

While it would be naïve to believe that the widespread use of social media will not have any role in the workplace, employers should be very careful about the extent to which they are relying upon social media when making any employment decisions.

For additional information or to discuss this article further, please contact Jennifer L. Barnett at jbarnett@meeb.com or 781-843-5000 x 157.