Panel: Checking Social Media Can Help Employers, but Law Is Ambiguous

By Lisa Nagele

Although some employers find it useful or even necessary to monitor the social media activities of employees and job candidates, there is still little guidance about what's advisable or legal, panelists said Oct. 15 at a discussion hosted by the Professional Services Council and the Equal Employment Advisory Council.

“We're in the very early stages of the legal development here,” said Mike Eastman, senior counsel and vice president for public policy at the EEAC. “There's no U.S. Supreme Court case interpreting Facebook posts and employment law.”

Government and industry have a responsibility to know what's being posted to social media, said Charlie Sowell, senior vice president of Salient Federal Solutions, an information technology, training and engineering service company that employs workers with security clearances.

“I want to know as an employer that I have a potential employee that's crazy on the weekends and it could affect my predominantly cleared workforce,” Sowell said. “I'm worried about suitability. I'm also worried about security clearance.”

Over the next two years, Eastman predicted, there will be more guidance on social media monitoring, particularly from the federal appellate courts, which will help employers ensure that their policies are consistent with the law.

However, guidance from the courts may not keep up with the fast pace of changing technology, he said.

Publicly Available Information

Sowell noted that he was addressing the issues surrounding publicly available electronic information, not password-protected data, text messages or private e-mails.

Referring to employers' looking at online information that's public, he said, “I'm baffled by the uproar over this.” Employees “should be a little bit accountable” for, he said, selfies showing them extremely drunk, for example.

For security clearance determinations, social media may provide better insight than other resources into personal conduct, drug and alcohol use, foreign influence and psychological conditions, Sowell said.

Although a “crazy rant” on Facebook isn't determinative of a psychological condition, he said, it may prompt the government or a company to ask follow-up questions that address psychological factors.

Private companies also have an interest in what their employees are posting publicly, Sowell said.

He showed a photo that a Kentucky Fried Chicken employee posted on social media, of himself licking mashed potatoes in the kitchen before serving them to customers.

Sowell said he wondered how an employer could possibly not want to know such things were taking place.

Protected Concerted Activity

But laws about employer monitoring of social media are still being developed, Eastman said. There are a few federal district court rulings on the subject, but most of the action has been with the National Labor Relations Board, he said.

The board has been active in pursuing allegations that employees were fired because of their social media activity, he said. The NLRB has also been reviewing employer policies that restrict how employees use social media.

The fundamental core of the National Labor Relations Act is the right of employees to work together for mutual aid and benefit, whether or not they're union members, Eastman said.

If employees are discussing wages, they're engaging in protected concerted activity, he said, whether an in-person conversation takes place or the discussion is on Facebook.

Although discussions about wages clearly are protected, Eastman said, others, such as making threatening comments to one's boss, aren't.

The middle is the gray area, he said. The NLRB would probably deem liking a comment on Facebook concerted activity, not a rant, Eastman added.

Some states have passed social media laws, which generally protect passwords and personal data, Eastman said.

These statutes typically prevent employers from requiring workers to provide their passwords, friend their employers or review their accounts in front of their employers, he said.

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