Social Media Legal Issues in the Extended Workplace

Social Media Legal Issues in the Extended Workplace

May 6, 2022

November 3, 2020
Social media is a powerful marketing tool, particularly now that individuals are working from home. It’s employed by over 90% of businesses for that very reason. Most businesses also use social media as part of the recruiting process. However, HKQ Law attorney Lars Anderson cautions that “if it’s not used carefully it can create legal problems for a business.”

For those hiring for essential occupations such as healthcare positions, warehousing and grocers, finding employees right now can be difficult. Checking out a prospective employee on social media might seem like a good way to learn more than a business could glean from a resume or even an interview. But social media can reveal “protected characteristics” that would otherwise remain private until the interview. Candidates who feel that they weren’t hired because of one of these characteristics may decide to file a discrimination lawsuit. Not doing a social media search until after a job offer is extended can reduce the likelihood of such lawsuits.

Some protected characteristics are set forth in federal and state laws which make it illegal to discriminate based on:

  • race
  • color
  • national origin
  • religion
  • sex (including pregnancy, childbirth, and related medical conditions)
  • sexual orientation and Identity
  • disability
  • age (40 and older)

Each state may have different employment discrimination laws and many larger municipalities have enacted employment discrimination ordinances. In addition to discrimination laws, employers need to be aware of any additional state provisions which a business needs to follow when hiring. For example, a number of states prohibit requiring or requesting employees or potential employees to provide their social media passwords.

According to a national survey conducted by a leading provider of employee assistance programs, nearly 90 percent of employees say they check social media at work. Some do so excessively, which can take its toll on productivity. But that’s not the only social media issue an employer may encounter. Consider the case of an employee who posted profanity-laced messages about his employer on Facebook. After learning of the posts, the employer fired the employee. Subsequently, a National Labor Relations Board (NLRB) panel found that the employer was violating the National Labor Relations Act (NLRA) by firing the employee, as his posts concerned protected concerted activity under the NLRA. As for the profanity, the posts didn’t use it in a way that the employer had not previously tolerated in other circumstances.

The NLRA protects employees in union and non-union workplaces who engage in “concerted activity” with the goal of improving workplace conditions. Employers may be liable if their actions prohibit, interfere or chill employees’ concerted activities. So, a decision to fire an employee based on social media posts need to be thoroughly reviewed and vetted to determine if the employee was engaged in protected concerted activity.

Employers can take steps to mitigate legal issues. One of the most crucial steps is to develop a clear, comprehensive social media policy, especially when you are relying on your employees to work from home. It is advisable to have a qualified attorney review the policy. Although there may be restrictions on our physical building being open during this troubled time, rest assured our attorneys are always here to help. To speak with experienced employment/labor law attorney, call HKQ Law at (800) 760-1529.