Employees’ Social Media Posts Getting Antisocial? OMG

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By Gayle Cinquegrani

There’s a saying that familiarity breeds contempt. When it comes to employers finding out about their employees on social media, that familiarity also could breed liability.

“It’s really a land mine for employers,” Denise Wheeler Wright, a management-side employment law partner at FordHarrison in Fort Myers, Fla., told Bloomberg BNA March 17. “It’s a really tricky area for employers” because in some circumstances, they are obligated to take action, while in others, they are not allowed to, she said. Usually, “employers don’t want to” keep tabs on their employees’ social media posts, “nor do they have time,” she said.

Wright discourages clients from asking to review the social media pages of employees or job applicants. An employer who monitors a job applicant’s social media could “learn things about their protected status that you wouldn’t learn from their resume,” such as “the person’s race, their age and potentially their religion or any disability they have,” she said. “If a candidate doesn’t get a job offer after you look at their social media site” containing this type of information, “it’s easy to see how that could trigger a claim” of discrimination, she said.

A potential employer shouldn’t base a hiring decision solely on what it sees on a job applicant’s social media pages, said Brenda Kasper, a partner at Kasper & Frank in Carlsbad, Calif. “Don’t assume” social media is true, she said. Social media isn’t determinative” but is only one “data point” among many, she cautioned HR professionals at a conference hosted by the Society for Human Resource Management March 13.

If a potential employer decides to look at an applicant’s social media pages, Kasper would prefer that an HR professional rather than the hiring manager do it. If an applicant’s social media pages are public and an employer finds objectionable content on them, it should consider discussing it with the applicant to ensure the page actually belongs to the person instead of another person with the same name, Kasper said.

Documenting the Decision

An employer who decides not to hire someone based on the person’s social media page should document this decision in its file, Kasper said. She suggested printing out the social media page, highlighting the offensive portion and writing a note on it explaining why the item is inconsistent with the company’s workplace philosophy. This record could “go a long way” toward helping the company if a lawsuit is filed, Kasper said. In general, “employers don’t have to be right. They have to have reasonable good faith in what they did.”

After a person is hired, “the more public-facing the job is,” the more significant the employee’s social media posts, including those showing his off-duty conduct, Kasper said. An employer also may have to monitor social media more if an employee’s job requires him to maintain a security clearance.

An employer “can discipline someone for what they put on Facebook as long as it’s not concerted activity,” Wright said. “Concerted activity” occurs when two or more employees act for their mutual protection regarding terms and conditions of employment. The National Labor Relations Board has taken an “extremely broad” view of concerted activity, but “I suspect that will change as members get replaced by this administration,” Wright said. “Their rulings will probably become more employer-friendly.”

“I recommend to clients that they don’t friend their employees on social media,” Wright said. An employer isn’t obligated to monitor its employees’ social media sites, but an employer may have “an obligation to investigate” if it is alerted to misuse that affects the workplace, such as harassment of an employee by co-workers, Wright said.

An employer that reviews employees’ social media should confine itself to public posts, but “content brought by co-workers is fair game,” Kasper said. A situation could arise in which an employee alerts an employer to a post on another employee’s private social media page. For example, an employee could take an unflattering photograph of a co-worker at work and post it with a nasty remark on a private social media page. Other co-workers could go to the page and express agreement with the comment, upsetting the person in the photo so much that she fails to show up for work the next day.

The ‘Don’t Be Mean’ Doctrine

In this circumstance, “you have to do something” because the post is affecting the workplace and employees “are trapped at work,” Kasper said. Even if a company doesn’t have a social media policy, it could rely on the “don’t be mean” doctrine to discipline the employee who posted the photo, Kasper said. If the photo originated outside the workplace, however, the employer probably shouldn’t get involved, she said.

A company “should have a social media policy that is thoughtful, and training so employees understand it,” Kasper said. It should update the policy at least annually, she said. A company may prohibit threats, harassment, libel, defamation and the disclosure of proprietary or trade secret information, but the policy should not be overly broad. She advised a company to include a catchall disclaimer such as: “Nothing in this policy is intended to chill employee-protected speech.”

A company’s social media policy could authorize only employees with specified job titles to speak for the organization and require that employees who use social media on the company’s behalf confine their posts to the organization’s official social media pages.

“An employer can monitor their own network,” such as an employee’s use of a workplace computer or a company-owned phone, Wright said. An employer also can discipline employees for posting to social media sites during their work hours.

For companies whose business relies on client relationships, “LinkedIn is scary,” Kasper said. When an employee with a noncompete agreement leaves a firm, the firm should monitor the former employee’s social media accounts to make sure the person isn’t trying to attract the company’s clients, she suggested.

“Whether you’re fair will go a long way” to help you win over a jury “if you’re ever in litigation,” Kasper said. “Avoid knee-jerk reactions” to social media. “Always talk to the employee.”

Workers Should Keep Posts Private

Employment lawyers who represent workers generally advise them to keep their online postings private. “I always advise my clients that they need to be very careful what they post from work, and also about work,” said Lorrie Peeters, a counsel at Caffarelli & Associates in San Francisco. “It’s just never a good idea to bad-mouth your employer online, even if you think they won’t find out,” she told Bloomberg BNA March 17.

Alexis Ronickher, a partner at Katz Marshall & Banks in Washington, advises her worker clients to “make everything private” on their social media pages and to “have no expectation of privacy” when using “any work device,” she told Bloomberg BNA March 17.

Half the states forbid employers to ask job candidates or employees for passwords to their social media accounts, Ronickher said. On the other hand, she said she sees no problem with an employer disciplining an employee for a social media post that violates company policy as long as the employer found it “legitimately” and the employer’s social media policy “is implemented universally and not discriminatorily.”

“We’re still in an era where things are getting sorted out,” Ronickher said.

To contact the reporter on this story: Gayle Cinquegrani in Washington at gcinquegrani@bna.com

To contact the editor responsible for this story: Tony Harris in Washington at tharris@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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