Remember when only birds “tweeted” and writing on someone’s wall or “tagging” was graffiti that could get you in trouble with the police and courts? Today, “tweets,” “wall posts,“ “tags” and even seemingly innocuous “likes,” to name just a few, may put you in court for entirely different reasons. The explosion of social media, such as Facebook, Twitter and LinkedIn, has revolutionized the way we communicate both personally and professionally, often blurring the lines between the two personas.
As with the advent of most new technology, social media use raises a multitude of new legal issues that are being unraveled by the courts and other lawmakers. In the past year, state and federal laws have begun to provide significant guidance to employers as to lawful monitoring, regulating and application of social media information.
Social Media and Hiring Decisions
Employers have increasingly used social media sites to recruit and scrutinize employee candidates. A 2012 social recruiting survey provides that 92% of U.S. companies now use social media and other social networks when looking for employees, up from 78% five years ago.1 While most companies use the more professional site LinkedIn, two thirds now also recruit through Facebook and more than 50% use Twitter to locate new talent.2
In 2012, media reports about employers requiring access to an applicant’s social media site as a hiring condition created a frenzy of public outrage and threats of legal action by Facebook.3 In response to the uproar, many states started enacting “social media password protection laws,” beginning with Maryland in April 2012. Since then social media password protection legislation has been enacted in an additional ten states, including California.4 Effective January 1, 2013, the California Labor Code prohibits employers from requesting or requiring applicants or employees to (1) disclose social media log-in credentials; (2) access personal social media in the employer’s presence; or (3) divulge any personal social media, except in limited cases with respect to employees.5
California and other state’s social media protection laws only prevent employers from reviewing an applicant or employee's “private” social media information. But what about situations where the applicant or employee does not utilize the site’s privacy settings? In these cases, an otherwise lawful online search may reveal applicants’ Facebook posts, organizations they have “liked,” events they plan to attend, people with whom they associate, books they read, places they have been, etc. Employers who come across this public information while conducting online searches are not violating any employment laws. Rather, it is their employment-related decisions after viewing the information that may violate employment-related laws, particularly federal, state or local anti-discrimination laws.
Generally, federal, state or local anti-discrimination laws prohibit employment decisions based on “protected characteristics” like age, gender, marital status, pregnancy, race, ethnicity, religion, national origin, citizenship, sexual orientation, disability, military status, and in some cities even physical characteristics such as appearance, weight and height.
Unlike traditional methods used in the hiring process such as resume reviews, interviews and reference checks, the review of social media sites often provides protected class information about a candidate that an employer may not lawfully consider when making employment-related decisions. Knowledge of protected class information eliminates one of the best defenses to employment discrimination claims, to wit, ignorance of the facts supporting the alleged discrimination.
For example, the “About” section of Facebook allows users to provide their gender, birth date, relationship status (including whether they are interested in men or women), religious and political beliefs, and languages spoken.6 All of this information provides everything an employer needs to know as to whether the applicant belongs to not just one but multiple potential protected classes.
Similarly, public “tweets” or Facebook “posts” may reveal an applicant’s protected characteristics such as a female applicant who “tweets” that she recently learned she was pregnant or an applicant who posts about his or her struggles with diabetes. Consequently, despite the employer’s efforts to limit the applicant’s interview to legally permissible questions, the employer now knows the candidate belongs to a protected class. If the applicant is not offered the job, the employer faces the risk of a discrimination lawsuit in which the employer will likely be required to provide computer records of social-media related searches during the hiring consideration period.7
Advice: Investigating the background of employee candidates is an important part of the hiring process for many employers. This is appropriate for numerous reasons, including avoiding liability for negligent hiring. If you decide to include a social media search in making hiring determinations, here are some suggestions for avoiding discrimination claims and lawsuits:
1. Conduct an in-person interview before researching a candidate online so that you don’t risk asking improper questions based on information learned through your online search.
2. As with any background check, the applicant should be informed that a background investigation including a search of social media sites will occur.
3. After the interview, have a person who is not the employment decision-maker conduct the search and review of social media information. This can be done internally by creating a shield between the person conducting the social media search and the person making the employment-related decisions. Or, the employer can hire a third party to conduct background checks including searches of public information on social media sites. However, be aware that federal laws such as the Fair Credit Reporting Act (“FCRA”) may be implicated depending on the third party source used to conduct a social media search. For example, employers who use a Consumer Reporting Agency (“CRA”) to conduct background checks are required under the FCRA to get written authorizations from applicants prior to the investigation, ensure the accuracy of the information, and give notice regarding adverse actions based on the CRA’s report. State and local laws may also apply to pre-employment background checks. Consult with legal counsel prior to conducting background investigations.
4. Provide the non-decision maker with a form containing only legal, pre-defined criteria for hiring decisions. Instruct the investigator that no additional information may be included on the form to insure that characteristics regarding protected class information are never disclosed to the employer or manager making the hiring decision.
5. Have policies in place regarding social media and hiring, and apply the policies consistently. Research every candidate’s online profile or none at all. Deciding who gets a background check and who does not may lead to discrimination claims.
6. Retain all records associated with hiring decisions including computer print outs of social media sites reviewed. The length of time an employer must retain records in hiring decisions varies according to different laws, so be sure to consult with local counsel or HR regarding this issue.
Social Media and the Management and Discipline of Current Employees
As with hiring decisions, employers need to be careful not to violate federal, state or local laws when drafting workplace policies and making disciplinary determinations. The National Labor Relations Board (“NLRB”) has recently issued several precedent-setting decisions in social media cases based on the expansive reach of the National Labor Relations Act (“NLRA”).
Section 7 of the NLRA grants union and non-union employees the right to engage in “concerted activities” for the purpose of their “mutual aid or protection.” Section 8(a)(1) of the NLRA prohibits an employer from interfering, restraining or coercing employees in the exercise of their rights guaranteed in section 7. Protected “concerted activities” include communications with co-workers and third parties about wages, hours, and other terms and conditions of employment.8
In each of the cases below, the NLRB considered whether the employer’s actions compromised the right of employees to exercise their Section 7 rights in violation of Section 8 of the NLRA. These decisions apply to both union and non-unionized employers.
In Design Technology Group, LLC, 359 NLRB No. 96 (Apr. 19, 2013), the NLRB awarded reinstatement and back pay to non-union employees who were terminated for posting derogatory statements about their supervisor on Facebook. The NLRB held that the employees’ Facebook posts constituted “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment . . .” and that the conversations were “for [their] mutual aid and protection. . . .” Therefore, the terminations based on the employees’ exercise of their Section 7 rights violated Section 8(1) of the NLRA.
In Hispanic United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), the NLRB held that the termination of five employees for violating an employer’s policies on the basis of their social media activity violated the NLRA. In that case, five employees were discharged for Facebook posts criticizing a coworker who was scheduled to meet with and complain to management about their work performance. The employer terminated the five employees for "bullying and harassing" the co-worker in violation of its policies.
The NLRB found that “[e]xplicit or implicit criticism by a coworker of the manner in which they are performing their jobs is a subject . . . protected by Section 7” of the NLRA. It was irrelevant that the employees did not first bring their complaints to management or that they were not attempting to change their working conditions.
In Costco Wholesale Corp., 358 NLRB No. 106 (Sep. 7, 2012) and Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sep. 28, 2012), the NLRB focused on the employer’s policies as they related to social media posts.
In Costco, the NLRB ruled that an employer’s overbroad social media policy violated the NLRA because it prohibited employees from posting statements online that harmed the company’s or anyone else’s reputation. No part of Costco’s policy excluded protected communications. Therefore, the policy “would reasonably tend to chill employees” from exercising their Section 7 rights.
In Karl Knauz, the NLRB ordered the employer to rescind its “Courtesy” policy finding that it violated the NLRA because the employees could "reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language’ which injures the image or reputation of the Dealership as encompassing Section 7 activity."
Finally, the NLRB recently released an Advice Memorandum issued in Giant Food LLC.9 General Counsel for the NLRB found that Giant Food LLC’s social media policy, including prohibitions against disclosing confidential or nonpublic information, using the company’s logo, trademark or graphics, and photographing or videotaping the company’s facility, were unlawful because they could be construed to chill employees’ Section 7 rights and therefore violated Section 8(a)(1) of the NLRA. Importantly, the memorandum advised that the company’s “Savings Clause,” providing that the company would not construe or apply its policies in a manner that interferes with employees’ rights under state or federal law, including the NLRA, did not cure the otherwise unlawful portions of the policy.
Advice: In light of the above NLRB decisions and instructive memorandum, employers should follow these best practices in drafting and implementing social media policies.
1. In drafting policies avoid overbroad or vague language such as “inappropriate,” “unprofessional,” or “disparaging” without providing specific examples. Similarly, avoid terms such as “non-public” or “confidential” without the use of limiting language because employees may reasonably construe it to limit discussions about working conditions. Avoid broad prohibitions against the use of an employer’s logo or trademark because it could be construed to prohibit non-commercial use in Section 7 activities such as in leaflets or picket signs. Similarly, avoid broad prohibitions against photographing or videotaping the workplace as it could be interpreted to prevent employees from using social media to share information regarding employees engaging in protected concerted activity such as picketing.
A “Savings Clause” to the effect "This policy will only be enforced within the meaning of the National Labor Relations Act" will not in the NLRB’s opinion cure what is an otherwise overly broad policy. A Savings Clause must provide sufficient guidance for an employee to know which activities are protected by the NLRA. In addition to providing specific examples and limiting language, include a clear statement to the effect that the policy is not intended to discourage discussions of or efforts to change working conditions or terms of employment.
2. In implementing policies, carefully consider the reasons for disciplining or terminating an employee who has posted offensive statements online. If the postings discuss working conditions, a supervisor’s behavior, or other similar issues they may be protected under the NLRA, consult with legal counsel before disciplining or terminating an employee.
3. In conclusion, the law in the area of social media is constantly evolving. Therefore, employers and HR managers should stay abreast of state and federal laws, including NLRB decisions and consult with legal counsel when reviewing, revising and enforcing your social media policies.