By Lorraine McCarthy
Nov. 12 — Many of the legal issues related to workplace use of social media are the same ones employers have faced for years, but in a technologically different context, officials from the Equal Employment Opportunity Commission and the National Labor Relations Board said during a panel discussion Nov. 12.
An employer that happens to see a job applicant's pro-union Facebook posts is in essentially the same position as one that finds out an applicant is a union “salt” seeking to organize the workforce—a situation employers have faced for years, NLRB Member Harry I. Johnson said during the program on workplace use of social media sponsored by the law firm Dilworth Paxson LLP in Philadelphia.
In either case, if the unsuccessful applicant claims he or she was rejected because of the employer's prior knowledge of his or her union views, the employer will have a problem unless it can demonstrate a business reason for the hiring decision, NLRB General Counsel Richard F. Griffin told participants.
In a similar vein, EEOC Commissioner Chai R. Feldblum said an employer using social media as a recruiting tool may inadvertently learn medical or other information about a candidate that it is barred from asking about or considering.
“If you find it and use it to make an employment decision, bingo, you have a violation,” Feldblum said.
Feldblum said the ability of social sites like Facebook to target advertisements to narrow subsets of users leaves an employer vulnerable to accusations of unlawful hiring practices if the ads are focused in such a way that potential applicants are excluded based on age, sex or other protected criteria.
The risk is greatest for employers that recruit exclusively through social media, although it exists even when an employer adds social media to a broader recruitment strategy as a way to get a more diverse response, Feldblum said.
Eric B. Meyer, who heads Dilworth Paxson's new social media practice group, suggested that employers might be able to avoid bias claims by assigning the task of using social media to vet potential new hires to someone other than the person making the hiring decision.
A sexually harassing comment about a co-worker posted on a personal blog or a Facebook page can contribute to a hostile workplace if it becomes known to the target and/or to other workers, Feldblum said.
“Once you're told of harassment, you have a responsibility to track down those facts” beginning with asking to see the post, she said.
Because surveillance of employees violates the National Labor Relations Act, employers should exercise care if a worker invites a supervisor to view his or her social media posts, according to Johnson.
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