Sharks Lurk for Employers in the Sea of Social Media

Written by kstuart Published in

These days, with a few clicks of the mouse, an employer can learn more about an applicant than in the entire interview process.  Thank you, social media.  The young found out by checking in and posting a picture from the Rodeo (a common Texas phenomenon in late February/early March).
The ease with which you, as an employer, may access social media in this context should not lull you into a false sense of security that it can or should be done.  It should go without mentioning, and this blog does not address, that no employer should hack into any applicant’s or employee’s social media sites or e-mail accounts.  Nor should any employer authorize, ask or condone any third-party doing that for it.  There are state specific laws that prohibit this type of practice.  Not to mention, this practice violates several federal laws, both civil and criminal. 

 When accessing social media in the hiring process and during employment, an employer dives into a treacherous sea.  Accessing social media when hiring an employee or to spy on current employees implicates unlawful employment practices under Title VII (the federal law which prohibits discrimination on the basis of race, gender, national origin, and religion), the Americans with Disabilities Act (ADA) and any of their state enacted counterparts.  Also, monitoring an employee’s social media sites and taking action against them for certain speech related to an employer’s practices can implicate the National Labor Relations Act (protecting the right to unionize and guaranteeing certain rights to union employees) and Title VII (in terms of retaliation).             Let’s take a look at some examples in the hiring practice.  Say your company is planning on hiring a receptionist and takes in resumes.  The resume does not state the applicant’s race, religion or national origin.  You might not be able to determine the applicant’s gender by the name on the resume (think Dylan, Addison, Chris, or L.L. Cool J in that sitcom where his name was Marion).  You will not be able to determine the applicant’s age.  You will not be able to determine whether the applicant is pregnant, for sure.  Nor will you be able to determine whether the applicant has some disability.  You may uncover the answers to these questions by accessing that applicant’s social media sites or by Googling the applicant.  Using this uncovered information in the selection process is unlawful under Title VII, the ADA and the Pregnancy Discrimination Act (PDA), just to name a few acronyms.  If brought before the EEOC on a discrimination charge, you may deny having relied at all on the information obtained.  What if, however, of 100 diverse applicants, you did not call for an interview any African Americans, men, persons with a disability, persons over 40, Muslims, or pregnant women.  You can deny reliance on the information you obtained from social media all you want.  The EEOC is not an employer’s friend, and the facts as set forth here don’t look so hot for you.

The news is not much better for employers accessing their current employees’ social media.  The use of social media implicates free speech.  Many social media users exercise free speech on social media sites—from political views to music, and even complaints about their job (most people over-exercise this right, in fact).  Employers who access their employees’ social medial sites may come across posts complaining about labor practices or calling for union organization.  Employment actions taken against those employees after that access may face a complaint with the NLRB.  (We’ll explore this topic in more detail in a future post.) 

Finally, many states have off-duty laws conduct laws. These laws protect an employee’s right to engage in lawful activity and prevent an employer from taking an adverse action against an employee for an employee’s off-duty activities.  By 2012, twenty-nine (29) states had enacted some sort of off-duty laws:

17 states have “smokers’ rights” statutes, which prohibit discrimination against tobacco users. (Connecticut, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming)
8 states have statutes that protect the use of any lawful product (e.g., tobacco or alcohol) outside of the workplace. (Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin)
4 states have statues that protect employees who engage in any lawful activity outside of work. (California, Colorado, New York, and North Dakota.

Chances are a click of the mouse and one open eye on a potential employee’s or current employee’s social media sites may catch them drinking, smoking, and maybe even picketing or protesting—all lawful activity.  Employers in states with off-duty laws may do nothing, but may do something, even inadvertently, based upon this information.   

So, with all these risks, are their legitimate uses for social media in the hiring process? Yes, for example:

   •  Resume verification- Employers may check social media sites to verify facts on an applicant’s resume.  Linked-in, Manta, and Spoke may provide insight to a potential employer regarding past jobs, educational background, etc.  Googling an applicant gives you access to this type of material, too, but you want to be cognizant of the pitfalls discussed above.
    •  Unlawful activity-Unlawful activity is not protected.  So, a squeaky clean interviewee who happens to extol the virtues of recreational marijuana and his hydroponic garden via the Internet does so at his or her own risk.  (For you employers in states with medical marijuana laws, be careful here.)

   •  Writing Samples-Employers interested in particular writing skills would not run afoul of lawful employment practices by seeking examples of the applicant’s writing skills online.  The devil is in the content, though. 

How about for current employees?

   •  Honesty-This goes back to the poor soul who forgot she was supposed to be sick and a friend happens to post a YouTube video of her dancing on stage with Tim McGraw.  Liars are not a protected class and dishonesty probably violates your handbook. 
   •  Proprietary Information-  An employee should not be posting a company’s trade secrets and proprietary information online.  By this I mean your special sauce recipe, not necessarily your employment practices.  (More on that when we discuss the NLRB).

  •  Lawful conduct on a business trip-  The key to off-duty conduct laws is that they only apply when an employee is off-duty.  If you send an employee to New Orleans on a business trip (why would you do that? But okay you have, so now what?), and that employee posts pictures or posts a status evidencing drinking or engaging in the local customs, you would be acting lawfully in taking an adverse action against that employee  under those circumstances. (Regardless of the post, this employee is stupid and should be fired for that reason, alone.)

The sea of social media is filled with sharks for employers.  In this post, I’ve outlined some pitfalls and advantages for employers using social media in the hiring process and during an employee’s employment. In the next post, I’ll discuss recent NLRB decisions and social media.

Kimberly R. Stuart 
Shareholder Crain Caton & James, P.C. 
Houston, Texas 



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