Changes Ahead For Social Media In the Workplace

, Corporate Counsel

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“Regardless of whether there is a law in place, where you have employees, employers need to be careful about how they use whatever information is available on social media accounts during the hiring process,” said Lori Zahalka, a Mayer Brown associate.

She said that whether or not an employer has a password, they should still be careful of other state laws that limit what employers can take into account when sceening applicants. Employers using social media to screen should also implement certain rules—a written search policy that defines which social media sites can be examined in the hiring process and what specific information will be reviewed—for example, hate speech or criminal activity.

“If you do implement a written policy, stick to the policy so there is no question about when employers may have deviated from it,” Zahalka said.

She also suggested putting a legal wall between the screener and hiring decision-maker, to “eliminate even the appearance of impropriety if the screener sees something that is a protected characteristic, that would not be communicated to the ultimate decision-maker.”

Another evolving area is the interpretation of the National Labor Relations Act (NLRA) in the context of social media. The National Labor Relations Board (NLRB) has had to tackle the question of if and how employees should be disciplined for discussing work-related topics on social networking sites.

Zahalka used the example of the Butler Medical Transport case, which the NLRB decided in September 2013.

“This is a good example of when it’s permissible to fire someone for a Facebook post, and when you can’t do that because it’s protected concerted activity,” she said.

The case involved the firings of two employees by a Maryland medical transport company for comments they posted on Facebook. The first employee commented on the page of a co-employee who had been fired for making comments to patients about the safety of vehicles, telling the other employee that she should hire a lawyer or go to the labor board. This employee’s NLRB claim was upheld as protected concerted activity since the condition of the company vehicles was a matter of mutual concern.

The second employee posted on Facebook that he was in a broken-down Butler vehicle for second time in two weeks because Butler did not want to pay for new equipment. It turned out he was in his own vehicle and the real Butler vehicles in question were not actually in need of repair. The NLRB deemed the second employee’s claims to be “maliciously untrue,” and therefore not protected under the law.

In another case, decided by the NLRB the month after Butler, the NLRB ruled in favor of the Richmond District Neighborhood Center, a San Francisco nonprofit community center that runs youth programs.

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    What level of privacy can a user on FB make that would effect whether its discoverable? Are you saying whether i posted it just to friends or to the public?

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