Jul 19th 2011
By Richard D. Alaniz
Imagine one of your employees bashes your company or their coworkers on Facebook. You might think that you could fire that employee. But you would probably be wrong. Or consider whether you should Google job applicants. It may seem like a no-brainer, but if you don't do it correctly, you could end up in the middle of a lawsuit.
As more people start to use social media and younger people who grew up with Facebook increasingly enter the workforce, employers can't ignore social media and hope it will go away. Companies need to understand how their workers are using social media and how they can use applicants' social media postings in hiring decisions. Most importantly, employers need to update their policies to ensure that they comply with current laws and regulations regarding social media.
Regulators Weigh In
It used to be that workers complained about their jobs with friends and family. Now, many of them take to Twitter and other sites to voice their frustrations. When employees rant publicly online about their bosses and coworkers, many employers may assume they have the right to terminate those employees. But the National Labor Relations Board (NLRB) has been increasingly targeting companies that fire workers for their comments on personal social media sites, arguing that some comments represent protected speech under federal law.
In May, the NLRB issued a complaint against a Chicago-area BMW dealership, claiming it unlawfully fired an employee who criticized the dealership on his Facebook page. The employee was unhappy that the dealership had only served hot dogs and water at an event promoting a new car model. When management asked the salesman to remove the posts, he immediately did so. Then it fired the salesman anyway.
According to an NLRB press release, the salesman's Facebook posting "was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a discussion among employees about their terms and conditions of employment, and did not lose protection based on the nature of the comments."
Shortly before the BMW case, the NLRB issued a complaint against Hispanics United of Buffalo in New York, alleging that the nonprofit organization unlawfully terminated five employees who had complained on Facebook about their working conditions. According to the NLRB, before a meeting with management, an employee took to Facebook to vent about working conditions, including comments about how other employees weren't doing enough to help the organization's low-income clients.
Other employees responded to the initial post, defending their job performance and criticizing working conditions. Once Hispanics United learned about the posts, it fired all five employees involved, claiming that they harassed the original poster.
Not all NLRB actions regarding social media go against employers, though. Recently, the NLRB upheld a newspaper's decision to fire one of its reporters for making critical comments about the newspaper through his Twitter account. The Arizona Daily Star had encouraged the reporter to Tweet as a way to attract readers to the paper's Web site. While the Twitter account was personal, the reporter identified himself on his Twitter biography as a Daily Star employee and included a link to the newspaper's URL.
After the reporter mocked editors' choices of headlines through his Twitter account, management told him not to criticize the newspaper or air work grievances through his Tweets. The reporter went on to make several sarcastic Tweets about his assignment as a public safety reporter, and he also made fun of the Tweets of a local television station. When the television station complained to the newspaper, the paper fired the employee, who filed a complaint arguing that his rights had been violated.
The NLRB's Division of Advice rejected the employee's claim, finding that the employee's Tweets were not a protected activity because they were unrelated to terms and conditions of his employment or protected concerted activity.
The former employee had also argued that the Daily Star had an overly broad and unlawful social media policy. However, the NLRB found that the newspaper's prohibition on social media comments only applied to the employee, so it wasn't a formal policy.
Facebook, Twitter, and Hiring Decisions
Along with the social media activities of current employees, companies also need to be careful about how they consider the social media activity of potential workers.
It's become commonplace for many companies to Google job applicants to find out aspects of their personalities and habits that don't necessarily appear on applications or resumes. While employers certainly can view and evaluate public Facebook postings, Tweets, and the like, they need to be careful how they research job applicants and how they use the information they find.
Companies need to do the research themselves. Hiring a third party to do that can trigger the jurisdiction of the Fair Credit Reporting Act. Under this act, using a third party to look at social media activities could be illegal. It's also important to respect would-be employees' privacy settings. Many people restrict their Facebook information to confirmed "friends." Trying to view information that is not available to the general public could put employers at risk of a privacy lawsuit.
If the employer does get access to applicants' social media postings, employers need to be thoughtful how they factor those into the hiring process. Federal regulations such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act prohibit discrimination based on a variety of factors, including race, color, religion, national origin, gender, age, and disabilities. Under the Genetic Information Nondiscrimination Act, employers also can't acquire genetic information about applicants.
Along with federal non-discrimination laws, companies also need to be aware of any relevant state and local laws. For example, in California it's illegal to discriminate against an employee or applicant based on sexual orientation, while in Wisconsin it's illegal to discriminate against an employee or applicant based on membership in the military. This type of information could be easily available on many social media sites.
Recently, the University of Kentucky settled a lawsuit filed by a job applicant who claimed he lost a job based on the religious views expressed on his personal website. In 2007, the university began looking for a director for its observatory. A search committee identified Dr. C. Martin Gaskell as the leading candidate. One of the search committee members found Gaskell's profile on the Web site of the university where he was then working, which also linked to his personal Web site. There, Gaskell posted an article titled "Modern Astronomy, the Bible, and Creation." The search committee consulted its biology department, which expressed concerns over Gaskell's creationist views. Biologists said they would not cooperate with the university's physics and astronomy department if one of "these types of individuals" was hired. When the committee recommended someone else for the job, Gaskell sued. The University of Kentucky ended up settling the case for $125,000.
Simply having a social media policy in place isn't enough. Earlier this year, the NLRB settled a complaint with American Medical Response of Connecticut, Inc. that partly involved the company's social media policy. In that case, the NLRB accused the company of illegally firing an employee over Facebook postings. While that part of the complaint is familiar, the NLRB also claimed AMR had an overly broad social media policy "regarding blogging, Internet posting, and communications between employees," according to an NLRB press release.
Employers can avoid many of these headaches through a comprehensive social media policy. Once the policy is created, companies need to be sure everyone is educated about it and that it is consistently enforced and frequently updated.
- Create a Point Person. Social media can take many different forms, and it's difficult to predict how different people will use it. With one person or committee in charge of overseeing social media, companies can ensure that issues are handled consistently.
- Regularly Monitor Social Media. With a single point person, it also becomes easier to keep an eye on Facebook, Twitter, YouTube, and other social media sites where employees could mention the company or fellow workers.
- Educate Employees. Employers need to be clear about their expectations regarding social media as well as employees' rights. The social media policy should be clear and straightforward, and employees should receive regular updates.
- Stay Up-to-Date. With the NLRB's flurry of social media-related complaints, some speculate that the agency may be looking for the right case to clearly establish the law. Companies need to stay current on federal, state, and local laws and regulations.
- Keep It Professional. Many sites such as LinkedIn and Facebook specifically invite users to identify their employers. The company's social media policy should outline how employees identify their places of employment when using social media for their own personal uses.
Social media is an everyday fact of life for many workers today. Companies need to understand how employees and would-be employees are using social media and how that can impact the company. A social media policy should offer guidance for management, supervisors, employees, and job applicants, helping to avoid confusion, hard feelings, regulatory actions, and lawsuits.
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Rick at (281) 833-2200 or [email protected]