United States: Five Common Employer Social Media Mistakes And How To Avoid Them

Social media has been and will continue to be an issue for employers. It has become the way people, especially Millennials, who make up a significant amount of the restaurant-industry workforce, communicate. When most employers think about social media in the workplace, they tend to think solely in terms of the high-profile social media firing cases where employers have terminated employees for posts made on social media. While social-media based discipline is certainly an issue for employers, there are a number of other social-media related issues that employers should be aware of. In this piece, five are addressed, starting with the most familiar and common offender, social media discipline.

1. Disciplining/Terminating Employees for Social Media Posts

Social media-based discipline concerns two issues: (1) employer policy; and (2) content. In many circumstances, private employers may discipline an employee for social media posts, including for posts that may negatively impact the employer's business, goodwill or that disclose confidential information, etc. Some social media communication, however, is legally protected, meaning an employer could get in a lot of hot water with a court or the National Labor Relations Board (NLRB) for disciplining an employee for making protected post.

This issue became a major focus for the Obama-era NLRB, which greatly expanded its oversight over the social media issue, and held a number of employers liable for illegal policies and employee discipline. To do this, the NLRB relied on Sections 7 and 8 of the National Labor Relations Act (NLRA), which grant employees (union and non-union alike) broad protection to engage in concerted protected activity, such as discussing work conditions; complaining about the terms and conditions of employment; and discussing wages, hours, safety, etc., on social media. For the most part, employee discipline in this area has been tied to the violating of a workplace rule or policy. Due to the tie in to policy, the NLRB's method for reversing discipline was to strike down employer social media policies after finding them too broad so that a reasonable employee would read the policy to prohibit protected concerted activity. For this reason, employers should take the following steps regarding social media discipline:

  • Policy Implementation and Review: Employers should have a social media policy, and ensure their policy complies with the NLRB's directives on what can be and cannot be included in an employer's social media policy. It will be interesting to see what the NLRB will do under the Trump Administration as we have already seen the NLRB and other agencies step back from many of the Obama-Era positions. (Read about the NLRB's recent changes here, and the Department of Labor's here.)
  • Discipline: Prior to disciplining an employee for violating a social media policy, employers should look at the entire content of the conversation at issue, not just an isolated post, and determine if any part of the conversation discusses a protected topic or could otherwise be construed as concerted activity prior to taking any disciplinary action.

In the grand scheme of things, this is a fairly easy issue for employers to get their heads wrapped around. Communications that discuss work conditions or that register as complaints for discrimination or harassment would most likely be viewed as protected. Posts that: (1) disclose an employer's confidential information or trade secrets; (2) constitute hate, harassing or threatening speech; (3) constitute discriminatory, harassing or obscene speech; (4) admit criminal or unethical conduct; (5) are in violation of the employer's anti-discrimination or anti-harassment policies; (6) that threaten the employer's goodwill or reputation by complaining about customers; or (7) that indicate that the individual is not suited for their position, are not protected.

2. Following Employees

A host of issues can arise when managers/supervisors become friends or follow subordinate employees on social media and, similarly, when co-workers become friends or follow other co-workers. In the context of a supervisor following an employee, the supervisor (who represents the employer regardless of whether the supervisor is off-duty when engaging on social media) may see information about the employee that, if used in the wrong way, could constitute illegal discrimination or retaliation. The protected information at issue includes an employee's race, ethnicity, or national origin information; religious affiliation; medical history or genetic information; age; military status and other categories of protected information. While some of this information may already be known to an employer, some may not. In the event an employer disciplines an employee, the employee could claim the reason for the discipline was because of the protected information the employee's superior saw on via social media, regardless of whether the supervisor actually did.

The other issue is with co-worker/co-worker social media connections. Not only can these types of connections pit co-workers against each other due to the sharing of family information, political views, religions affiliates, and personal views, but co-workers are typically the first to turn social media content (typically screenshots) to an employer to get co-worker in trouble. This typically occurs when a co-worker misses work due to "illness" but makes social media posts that show the employee on vacation. In the current political climate, this also occurs when individuals make religious- or race-based posts concerning, for example, immigration or the NFL, that are easy fodder for a discriminatory hostile work environment. This is where social media "friends" turn into "frenemies". The news is full of employees being terminated for religious-, political-, and race-based social media posts. Case in point; remember the woman who was fired after a photo her giving the middle finger to President Trump's motorcade went viral.

3. Using Social Media in the Vetting Process

The same issues that arise when supervisors friend or follow subordinates also arise to a certain extent when employers use social media to vet applicants for employment. The concept is easy enough to understand; it is the same thing as Googling a blind date. A manager gets the name of an applicant/interviewee, and does an Internet search on the person. Plenty of interesting and legally-viewable information will likely surface, but there is a possibility that some protected information will pop up as well, including the applicant's race, ethnicity, national origin, religious affiliation, genetic information, etc. Even if the employer does not use any of the information to make an employment decision, the fact that a social media search was performed and protected information became available to a decision maker provides the applicant a colorable argument that protected information was used as an exclusionary barrier to employment.

One case demonstrates the nightmare employers can face. In Nieman v. Grange Mut. Ins., 2013 U.S. Dist. LEXIS 47685 (C.D. Ill. Apr. 2, 2013), an applicant sued Grange Insurance after he did not get further in the interview process. He argued that a decision influencer looked at his LinkedIn profile and (by looking at his graduation dates) determined he was over the age of 40. An applicant under the age of 40 was hired for the position and the applicant sued for age discrimination. The employer tried to get the lawsuit dismissed at the outset, but was unsuccessful because the applicant made a colorable claim. This forced that case to go on and onto the expensive process of full litigation, e.g., depositions, discovery, summary judgment briefing, etc. At the conclusion of the expensive discovery, there was no evidence that anyone from Grange Insurance even viewed Mr. Nieman's LinkedIn profile and the case was finally dismissed. The nightmare for employers, however, is that the employer essentially had to prove that it did nothing wrong and go through the process of proving that the applicant had no evidence and instituted an expensive lawsuit based on nothing more than a concocted theory. It was a very expensive process for an employer who did not even conduct a social media background screen.

To avoid some of these issues, employers can affirmatively put policies in place regarding social media vetting prohibiting managers, HR representatives, those in the interview process, and decision makers from conducting social media background searching on employees. Alternatively, employers may conduct social media background screens legally by setting up a documented process of review. Such a process should include a person to conduct the check and derive a memorandum of legal information that can reviewed for employee; decision makers who are completely walled off from the search process; and a formal written process outlining the scope of the screen.

Legal social media snooping on applicants is mainstream, so it is important that employers get it right. In fact, according to a 2017 CareerBuilder survey, 70 percent of employers use social media to screen candidates before hiring, which is up significantly from 60 percent in 2016. In addition, there are a number of Tinder-like apps employers and applicants can use to connect via social media, including Switch and Jobr, which employ the swipe and match Tinder model.

Social media can be a good way for employers to find applicants and to screen applicants, but employers must be cautious of the risks and plan ahead to avoid them.

4. Responding to Workplace Complaints Made on Social Media

Federal and state law protects employees from being subjected to a discriminatory, retaliatory, or harassing environment. These register in the form of hostile work environment, sexual harassment, and retaliation cases, but they do not necessarily always manifest or originate in the physical workplace. Sometimes the illegal behavior includes offending statements that occur off-duty, off-site, and virtually. Social media has certainly blurred the lines between personal and private and, because of this blurring, the off-duty, off-site, and virtual nature of the harassment or the complaint about harassment does not make it any less actionable. This is why employers must remain vigilant and cannot ignore an issue once they become aware of it, even if it occurs purely in social media.

If an employer becomes aware of inappropriate conversation on social media between employees, or if the employer becomes aware that an employee has complained about workplace harassment or discrimination on social media, the employer should respond just as if the conversation had occurred in the physical workplace.

Debord v. Mercy Health Systems of Kansas, Inc. 737 F.3d 642 (10th Cir. 2013), is a case that demonstrates the proper steps for employers in responding to online sexual harassment complaints. In Debord, the employee took to Facebook to complain that her supervisor "needs to keep his creepy hands to himself...just all around d-bag." The employer immediately investigated the matter, which included interviewing the employee who made the post. The problem, the employee would not cooperate with the investigation and repeatedly took steps to undermine the investigation. The employer terminated her for failing to cooperate with its investigation and, in turn, the terminated employee sued. The court found that while the employer was conducting its investigation, the employee lied about whether she made the Facebook posts, and further interfered with the investigation by sending inappropriate messages and texts during the investigation and rightfully terminated her.

The moral of the story is that social media is a new technology and a new form of communication, but the same laws apply. If an employer learns of a complaint on social media, whether directly or indirectly, the employer should investigate just as it would had the offending conduct occurs in the physical workplace.

5. Failing to Preserve Evidence

Lastly, if a workplace issue arises on social media or if communications regarding a potentially illegal issue are made over social media platforms, those posts/communications are relevant evidence. As soon as the employer has any anticipation that there could be litigation and that social media evidence may be relevant, the employer must preserve it.

The easiest way to do this is to send a litigation hold to all relevant employees instructing them not to destroy, modify, or otherwise affect any social media post, communication, or message to/from/between relevant individuals or regarding certain subject matters. While screenshots are not the best form of preservation, they are better than nothing (though they do not include helpful metadata that can be used to identify the timing and location of a post/picture/video). Ultimately, if social media evidence is properly preserved, it is preserved in its electronic form with all metadata intact.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Morris, Manning & Martin, LLP
Ostrow Reisin Berk & Abrams
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Morris, Manning & Martin, LLP
Ostrow Reisin Berk & Abrams
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions