NAVIGATING SOCIAL MEDIA ISSUES IN THE WORKPLACE
Labor & Employment Law Section
Chairs: Amanda Biondolino - Sass Law Firm and Jason Pill - Phelps Dunbar, LLC
Practitioners should be aware
that any litigation over a hiring
decision is likely to involve
social media postings.
R
ecently, the Section
hosted a program on
emerging electronic
evidence issues. The
presentation highlighted how
advances in, and increased use of,
technology has created interesting
legal issues in the context of work -
place disputes. As a supplement to
that presentation, this article covers
practical concerns practitioners
should consider when advising
clients on navigating social media-
related employment questions. in hiring claims. Through social
media, employers may learn
information regarding a candidate’s
race, age, religion, or other
protected classifications, that may
not otherwise be known.
Ultimately, given the prevalence
of social media use, practitioners
should be aware that any litigation
over a hiring decision is likely to
involve social media postings.
Practitioners should advise clients of
the pitfalls from both the employee
and employer perspective that could
defeat a claim or blow a defense.
Hiring
Individuals regularly use social
media platforms such as Facebook,
Instagram, Twitter, LinkedIn, etc.,
to post about their personal and
professional lives. And, a 2018
CareerBuilder survey indicated
that 70 percent of employers use
social media in hiring and another
43 percent use it to check current
employees. 1 As a general
proposition, neither federal nor
state law prohibit an employer
from looking up an employee on
social media sites or through a
Google search. Thus, prospective
and current employees should be
warned that their social media
posts could provide legitimate
reasons for an employer not to hire
them into a role. Yet, employers
should be advised that checking
social media is not without risk
and could lead to discrimination Discipline
Social media posts can also
cause problems for employers and
employees alike as it relates to
discipline. Employees should be
advised that social media posts can
in certain instances be fair game for
employer action. Employers should
be warned that, if they choose
to monitor social media activity
of employees, they must do so
consistently and be sure not to
retaliate against protected speech or
lawful off-duty conduct. That being
said, certain off-duty conduct should
be addressed to the extent it violates
company policies prohibiting
discriminatory or harassing
behavior towards co-workers or
otherwise interferes with the
workplace. Indeed, if an employer
learns that an employee is harassing
a co-worker on social media, the
employer may be liable for creating
52
a hostile work environment if it
does not address the issue. An
employer’s response to harassment
through social media should be
consistent with the response to
harassment in other contexts.
The bottom line is that social
media posts can be used by
employees to show an employer’s
inaction and can be used by
employers to show that an employee
behaved badly. As such, the value
of social media postings should not
be ignored in company policies,
pre-suit considerations, or discovery.
Social media considerations in
the employment context are more
far-reaching than the scope of
this article. Practitioners should
continue to watch ongoing
developments in this area to
properly advise clients and to
effectively litigate claims in our
current technological climate. n
CareerBuilder (Aug. 9, 2018),
www.prnewswire.com/news-
releases/more-than-half-of-employers-
have-found-content-on-social-media-
that-caused-them-not-to-hire-a-
candidate-
according-to-
recent-
careerbuilder-
survey-
300694437.html.
1
Author: Claire
Meharg - Fisher
& Phillips
JAN - FEB 2020
|
HCBA LAWYER