SOCIAL MEDIA LEGAL ISSUES IN THE EXTENDED WORKPLACE
March 23rd, 2020 | Lars H. Anderson
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:
- national origin
- sex (including pregnancy, childbirth, and related medical conditions)
- 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 upon sexual 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.