What to consider when networking & litigation collide
by Jackie Wheeler
June 7, 2017

According to a recent Pew Research study, roughly 8 in 10 Americans use Facebook, and it comes as no surprise that a large percentage of employed Americans are utilizing a variety of social media platforms on a daily basis. As this technology segment continues to grow, employers must follow state and federal laws that relate to social media, or they will likely find themselves in an unwanted legal dispute. Companies must consider the legal implications of using social media in their business processes, should they find themselves in the midst of litigation.

1. Hiring Process

Social media can be a great tool for discovering information about candidates. However, the discovery of that information may have severe legal consequences. Federal, state and local laws prohibit employers from making employment decisions based on protected characteristics, such as race, gender, sexual orientation and disability. Typically, employers shield themselves from this liability by asking proper, nondiscriminatory questions on job applications.

However, employers who use social media during the hiring process may expose themselves to discrimination claims if they discover information on a potential candidate’s account that cannot be unseen. For example, suppose an employer receives an application from Candidate A. After reviewing the application, the employer proceeds to look up Candidate A on Facebook, only to discover Candidate A is Muslim, African American with a same-sex spouse. The employer would not have been aware of this information without reviewing Candidate A’s Facebook page. After review, the employer determines a different candidate is a better fit for the job, thus denying Candidate A employment. If Candidate A sues the employer because he believes he was discriminated against in the employment process, the employer loses the defense that race, gender and sexual orientation did not enter into the hiring process because the employer reviewed Candidate A’s Facebook page.

2. Employee Handbook

A social media policy can inform employees of an employer’s expectations regarding employee conduct on social media platforms. These policies can protect the interests of both the employer and employee by (i) guarding confidential information, (ii) minimizing online discrimination and harassment and (iiI) helping the employer avoid tricky legal situations. A nonexistent or poorly crafted social media policy may lead an employer to an undesired legal battle for violating an employee’s rights under the National Labor Relations Act (NLRA). Employees are permitted under Section 7 of the NLRA to engage in protected concerted activity, which may include communicating with others about the terms and conditions of their employment. Employers may violate the NRLA by taking adverse action against an employee for exercising Section 7 rights.

Accordingly, employers should contact legal counsel before taking an adverse action against an employee based on social media because the employee’s conduct may be protected under the NRLA. When crafting a social media policy, employers should consider including a disclaimer. The disclaimer should state that the company respects employees’ rights to express personal opinions and discuss the terms and conditions of employment. This disclaimer should also state that nothing in the social media policy is intended to interfere with the employee’s rights. While this disclaimer does not completely shield an employer from violations, it can help inform employees of the employer’s intent behind the policy. Consider consulting legal counsel before implementing any policy that may regulate employee conduct. Applicable state and federal laws, recent cases and governmental memorandums concerning social media policies should guide an employer’s legal counsel in crafting a compliant and effective policy.

3. Preservation of Evidence

Employers also need to be careful of their company posts on social media and how the organization reacts to its employees’ social media posts. Despite the obvious impact of an employer’s controversial online statement on the company’s public image, statements on social media can be used against the employer in future litigation. As such, it is critical for an employer to preserve historical social media posts. The duty of an employer to preserve evidence arises upon the reasonable anticipation of litigation, and can expand depending on the circumstances of each case. Failing to preserve evidence can open an employer up to additional penalties or litigation.

Social media can be an effective tool for employers. However, employers should strive to avoid negative legal implications by consulting with counsel before responding to situations involving social media situations and/or crafting a legally enforceable social media policy.