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SOCIAL MEDIA LEGAL ISSUES IN THE EXTENDED WORKPLACE

Vetting Job Candidates

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.

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)
  • disability
  • age (40 and older)

Under federal law, citizenship status, and genetic information are also protected characteristics.

Pennsylvania law also prohibits discrimination based on:

  • GED rather than high school diploma
  • use of service animal
  • relationship or association with disabled person

States and cities may have other laws regarding employment discrimination. For instance, the City of Philadelphia Fair Practices Ordinance prohibits employment discrimination based uponvsexual orientation or gender identity.

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.

Social Media Posts by Employees

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 echoed previous complaints from other employees. 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 should not be arrived at hastily.

Social media problems can take the form of an employee’s post. An example would be employee posting defamatory comments or materials about a co-worker. An employer who is aware of the ongoing defamation but fails to take appropriate action could face vicarious liability.

Social Media Marketing Legal Pitfalls

Businesses using social media for marketing need to be mindful of mistakes that can become legal problems.

  • Keep it real

Social media messages that are false or misleading can result in a Federal Trade Commission (FTC) investigation.

  • Don’t badmouth the competition

Making negative claims about competitors that you can’t prove can give rise to a defamation lawsuit.

  • Avoid contest violations

Make sure that your contest doesn’t violate any laws, and features appropriate disclaimers such as “no purchase necessary” and “void where prohibited.”

  • Don’t “borrow” someone’s work

Content created by someone else is typically protected by copyright law.

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.

About HKQ Law

Hourigan, Kluger & Quinn is considered one of the top civil litigation and commercial law firms that has had the privilege of representing more families in the courtroom than any other NEPA firm. The attorneys at HKQ Law have been honored as Super Lawyers, Best Lawyers, Best Law Firms by US News and World Report, and have received the AV Preeminent Rating by Martindale-Hubbel. HKQ Law was recently recognized for one of the top 20 Verdicts in Pennsylvania.

The firm’s Personal Injury Team, led by Attorney Joe Quinn, Jr., has won some of the largest verdicts and settlements in the region's history. The Personal Injury Team focuses on a wide array of personal injury claims and civil litigation, including medical malpractice, auto and truck accidents, aviation accidents, unsafe vehicles, dangerous or defective products, workplace injuries (worker's compensation), construction site accidents, claim denials by insurance companies, dangerous drugs, defective children's products, nursing home abuse and neglect, and falls due to unsafe conditions (slip and fall).

Attorney Joseph A Quinn, Jr. is one of only 100 attorneys in the United States (and one of only three in Pennsylvania) honored with membership in the Inner Circle of Trial Advocates, and one of only 500 attorneys worldwide chosen to be a Fellow of the International Academy of Trial Lawyers. He has been a Pennsylvania Super Lawyer every year since the program began and has been listed in The Best Lawyers in America every year since the publication was established in 1987. Best Lawyers also named him top personal injury attorney for Northeastern Pennsylvania and the Lehigh Valley. In addition, Best Lawyers, in conjunction with U.S. News & World Report, has designated HKQ a Tier 1 Best Law Firm across multiple categories in Northeastern Pennsylvania and the Lehigh Valley.

Since the inception of the firm, the Commercial / Corporate Team led by Attorney Allan Kluger has provided comprehensive, integrated legal services to many of Northeastern and Eastern Pennsylvania's largest corporations, businesses, banks, non-profits and institutions, handling matters involving labor and employment, wills, trusts and estate planning, estate administration, elder law, commercial transactions, residential and commercial real estate, zoning, land use and development, telecommunications, mediations and arbitrations, commercial litigation, title insurance, business planning and business succession, corporate/business structuring, employment discrimination law for employers, banking, creditor’s rights, finance, lender liability defense, covenants not to compete, construction law, mergers and acquisitions and other business matters.

Additional information can be found at www.HKQLaw.com or by calling (800) 760-1529.

				

 

As Hourigan, Kluger and Quinn addresses the concerns raised by COVID-19, the health and safety of our clients, employees and friends of the firm remain our top priority.


These are very difficult and scary times and we hope that you and your loved ones are safe and symptom free. We recognize that so many of you are understandably anxious about your health, the economic impact of this pandemic and all of the consequences of social isolation.

We also recognize that many of you are anxious about how the coronavirus is impacting the Court systems, our firm and your cases. Although all of our offices are closed, our firm has remained fully operational and we have initiated procedures that allow all of our attorneys and staff to work remotely from their homes. Each of us and our staff will respond to any emails and calls about your cases as quickly as possible.

Our Federal and State Courts have instituted significant changes in their calendars as a result of the coronavirus. Although most courthouses are closed to the public, and Hearings and Trials will be delayed for some time, there are matters that can proceed telephonically and by video. Despite these changes in the Court calendars, we are working diligently on your cases and are determined to do whatever we possibly can to assure an early and just recovery for you and your loved ones. Even under these difficult circumstances, we believe that "Nobody will work harder for you than we will."

With regard to new potential clients, we are not in a position to have an in-person new client meeting, but we will be conducting these initial meetings via phone. New potential clients should call us for a free telephone consultation at (570) 287-3000.

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