United States: To Follow Or Not To Follow … (Social Media In The Workplace—Part 1 Of 2)

You're reading a blog post, and thus need no primer on the prevalence of social media. But you may not be aware of the pitfalls facing employers that use, monitor, or implement policies regarding social media.

Employers can face liability for a wide variety of social media-related practices. For example, if you thought employers generally could prohibit employees from picking fights online or that there isn't anything wrong with an employer friending an applicant before extending a job offer ... well, think again.

Big Brother The NLRB Is Watching

In recent years, the National Labor Relations Board has increasingly scrutinized social media employment policies to see if they would deter the rights of employees to engage in concerted activities, including the rights to discuss their terms and conditions of their employment.

We previously lamented the lack of clarity regarding what constitutes an acceptable social media policy in the jaundiced eyes of the NLRB. The good news is that the NLRB's General Counsel has issued guidelines regarding social media policies.  The bad news is that the guidelines sometimes offer insufficient guidance, or guidance that the courts may not accept. Further, the views expressed in the guidelines are those of the General Counsel, and may or may not be accepted by the NLRB.

For example, the NLRB guidelines advise that the following seemingly innocuous rules are likely unlawful:

  • prohibiting employees from engaging in disrespectful, negative, inappropriate or rude conduct towards employers or management;
  • generally prohibiting employees from sending unwanted, offensive or inappropriate emails;
  • banning, across the board, picking fights online; and
  • requiring employees to get approval before creating a blog or discussion group.

The NLRB guidelines disapprove of such generally stated policies because they could have the effect of curbing protected activity.

In contrast, the NLRB explained that the following, more specific, rules would likely be lawful:

  • prohibiting employees from being disrespectful, negative or rude to customers;
  • prohibiting conduct that threatens, intimidates, coerces, or otherwise interferes with the job performance of fellow employees or visitors; and
  • requiring employees to get approval before creating an online forumthat does not relate to wages, terms, and conditions of employment or other protected activity.

The NLRB guidelines suggest that these rules likely would be permissible because they are drafted with sufficient specificity to demonstrate that they won't impede the right of employees to discuss the terms and conditions of their employment.

The main takeaway from the NLRB guidelines is that context is key. A rule that might come across as ambiguous (and unlawful) in isolation may take on a whole new meaning with carve outs or examples that demonstrate how the rule won't prevent an employee from engaging in a protected activity.

Pandora's Box of Potential Pitfalls

The NLRB is not the only policer of social media employment policies. California and a growing number of other states prohibit employers from (1) requiring job applicants to provide social media passwords, (2) requiring job applicants to "friend" employees, or (3) requiring applicants' friends to disclose what the applicants posted online. [Keep an eye out for Part 2 of our Social Media article, with its link to Seyfarth's Social Media Privacy Legislation Desktop Reference Guide.]

It remains true, of course, that California employers are not explicitly prohibited from viewing publicly available information. But just because it's not unlawful doesn't mean it's advisable.

In addition to social media revealing trivial information like what someone just listened to on Spotify, social media can also reveal a host of personal information that employers cannot ask for during the hiring process (and may be better off not knowing). By viewing this information and then deciding not to hire an applicant, employers can inadvertently expose themselves to litigation risk. For example, if a rejected applicant's Instagram or Facebook postings contain pregnancy-related pictures, or photographs of church-related functions, or show that the applicant has a disabled child or spouse, a potential employer might later find itself embroiled in a discrimination claim.

So while California has not (yet) forbidden you to check out your potential employee pool online, the potential problems caused by doing so may mean you might want to skip the Facebook stalking and stick with Candy Crush. (The uninitiated who find this reference obscure may wish to consult https://apps.facebook.com/candycrush.)

Workplace Solutions

Given the trove of personal information available online, the best practice is to avoid using social media during the hiring process. And it might seem harmless to prevent an employee from being rude to a supervisor on Twitter, or to look up a potential employee on your Facebook app, in this case what you inadvertently know might hurt you. So steer clear if you can—knowing how many Grumpy Cat memes an applicant or employee posted is not worth it!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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