Social media use continues to increase exponentially. This increase has been accompanied by the increased interest in regulation of social media influenced employment decisions by the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”). Social media posts frequently reach thousands of people. Employers are concerned, and rightfully so.
The NLRB has taken the lead in scrutinizing private employers who discharge or discipline an employee based on social media activity. The National Labor Relations Act (“NLRA”) gives employees, even in non-unionized workplaces, the right to engage in protected, concerted activities for the purpose of “mutual aid and protection” which includes complaining about wages, hours of work, and conditions of employment (including criticism of management team members and co-workers) and prohibits employers from disciplining employees for engaging in such activity. The Board’s decisions have been inconsistent and the reasoning behind the decisions has frequently been difficult to understand. In addition to reviewing “Facebook Firings,” the NLRB also examines employers’ social media policies because work rules that “tend to chill” employees in the exercise of their rights violate the NLRA.
When confronted with an employee’s offensive content on a social media site, stop and evaluate whether the employee has engaged in protected, concerted activity. An individual gripe might become protected if another employee “likes” it. However, not every communication is protected, and the more outrageous the comment, the less likely it is to be protected. Employers must ensure that policies are narrowly tailored and contain well defined terms so that they do not prohibit protected activity.
Employers who review sites like Facebook, MySpace, Twitter, and LinkedIn to screen applicants must consider the EEOC and relevant anti-discrimination laws. Just by glancing at Facebook, an employer could learn an applicant’s age, color, religion, or sexual orientation, even if the application does not request the information. There are vendors who can perform social media background checks and remove any protected information. Reliance on social media postings could also result in claims that members of one protected class are favored over another if an employer relies on information found online to make a hiring decisions that negatively impacts those without a presence.
In monitoring social media sites, employers may inadvertently discover an employee’s protected characteristic. Accessing this information can require the employer to prove a negative - - that it had knowledge of the information, but did not discriminatorily use it. However, it can also provide useful information in defending claims brought by employees such as harassment, workers’ compensation, and Fair Labor Standards Act (“FLSA”) violations.
Despite these perils, it can be beneficial for employers to encourage employee use of social media to promote their products or services. This leads to another employment law consideration: whether employees must be compensated for time spent posting from home. The FLSA requires employers to pay non-exempt employees for all hours worked. One federal court has held that time spent at home sending work-related transmissions may be compensable unless infrequent and insignificant. Thus, employers should carefully consider policies encouraging employees to transmit outside of scheduled working hours.
Social media is now the dominant interpersonal communication medium. It is imperative that employers understand this ever-changing area of the law. Employers must carefully evaluate any employment decision that involves social media or information accessed from it and when in doubt, consult an attorney who is knowledgeable on the developing law relating to social media and the workplace.
Armin J. Moeller, Jr., is a partner in Balch & Bingham’s Labor & Employment Practice Group. Armin’s practice focuses primarily on labor relations and employment law issues, but includes health law, business litigation, arbitration and contracts.
Ashley Eley Cannady is an associate in Balch & Bingham’s Labor & Employment Practice Group. Ashley’s practice focuses on defending employers and management in employment-related disputes before courts and administrative agencies. She provides advice to employers regarding avoidance of work-related legal exposure.