When Employees Overshare: Navigating the Legal Minefields When Making Employment Decisions Based on Social MediaApril 2019

Agenda

Social Media in the Hiring ProcessEmployees and Social MediaOff-Duty ConductSocial Media Policies

Categories of Social Media Social or Professional Networking

– Facebook, LinkedIn, Google+

Blogs and Micro-Blogs– Twitter, Tumblr

Digital Media Video and Image Sharing– Instagram, Facebook Live, Snapchat,

Pinterest, YouTube, Vimeo, Periscope

Other Social Media– Location-Sharing, Consumer Review, Virtual

Worlds, Social Bookmarking

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General Social Media Statistics

https://blog.statusbrew.com/social-media-statistics-2019/

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active social media users worldwide

of people in the U.S. own at least one social

media profile

77%3.04 Billion 135 minutes

What Can You Find on Social Media? Work History Career Interests Education History Memberships Hobbies Vacation Photos Party Photos Family Information

Poor Judgment Drug Use Links to Profiles of Friends Links to Blogs Political Views Religious Views Medical Information

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Social Media in the Hiring Process

Benefits of Using Social Media in the Hiring Process Identify potential candidates. Engage candidates. Learn more about the interests of

prospective employees. Identify a prospective employee’s

professional qualifications and skills to determine whether they fit with the criteria of the position. It is cheap and easy. Limits negligent hiring claims.

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Risks of Using Social Media in the Hiring Process Adverse impact. Discovering information about protected

characteristics.– Age, race, gender, national origin, ancestry,

sexual orientation, marital status, arrests, etc.

Invasion of privacy. False/incorrect information. Potential for inconsistent application.

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Risks of Using Social Media in the Hiring Process The Fair Credit Reporting Act (“FCRA”) provides protections for applicants who

undergo a background check. Investigation of online activity may be a “consumer credit report” under the FCRA. The FCRA requires that employers:

– Provide applicant’s with written notification that a consumer credit report may be used; and– Obtain the applicant’s written authorization before requesting a report.

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Fact Scenario Mary collected resumes for an open position. The Director, Bob, will decide who is hired. Mary scheduled five interviews. Bob “googled” some of the applicants, and found some Facebook profiles with

pictures and information. Before the interviews: Bob eliminates candidates because of their inappropriate pictures and discrepancies

between their profiles and resumes. Bob hired Jimmy.

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Do You Agree with Bob’s Actions?1. Yes, it is Bob’s responsibility to hire

excellent employees.2. Yes, Bob may consider the content of a

Facebook profile to decide whether to hire a candidate.

3. No, basing a hiring decision on a candidate’s social media profile is unlawful.

4. No, because it exposes the company to discrimination liability based on a protected categories.

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Best Practices for Social Media Searches Limit the search to truly necessary information. Establish guidelines. Comply with FCRA. Have someone outside of the decision-making group conduct the search. Look later in the process. Only review publicly available information. Be consistent. Document hiring decisions and record any reasons for rejection.

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Employees and Social Media

Can Employers Discipline Employees Based on Social Media?

Typically, yes, as long as the employer does not violate discrimination or other employment laws. BUT, employers should do so cautiously.

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The National Labor Relations Act (“NLRA”) Sections 7 and 8 of the NLRA grants 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.

This protection extends to certain work-related conversations conducted on social media.

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The National Labor Relations Board (“NLRB”) An independent federal agency that

enforces the NLRA. 2010 – The NLRB began receiving charges

in its regional offices related to employer social media policies and to specific instances of discipline for Facebook postings. 2012 – The NLRB began to issue decisions

in cases involving discipline for social media postings.

Disciplining Employees for Social Media Activity

An employer analyzing whether it can lawfully discipline an employee for his or her social media activity should consider:

1. whether the employee’s activity is concerted; and

2. whether it occurred under circumstances that fall within the NLRA’s protection.

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Is the Social Media Activity Concerted? The employee must take the action together with—or on the authority of—other

employees and not solely by and on behalf of the individual employee.– Activity can still be considered concerted where coworkers are not directly involved if the

activity continues a conversation or discussion among coworkers regarding working conditions.

Personal griping over social media is usually not considered concerted activity because it is not done together with other employees.

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Concerted Social Media Activity

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Three D, LLC v. NLRB Former employee posted a Facebook status criticizing the employer’s calculation

of the former employee’s tax-withholding. Current employee “liked” the status, while another employee commented on the

status. The Second Circuit held that merely clicking the “like” button was sufficient to fall

within the protections of the NLRA and that the second employee’s comment did not lose protection under the NLRA even though it contained obscenities and was viewed by the employer’s customers.

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2015 U.S. LEXIS 18493, at *8-9 (2d Cir. Oct. 21, 2015).

NLRB v. Pier Sixty, LLC Employee posted on his Facebook page while taking a short break from work after

his supervisor reprimanded him:– “Bob is such a NASTY MOTHER F***** don’t know how to talk to people !!!!!! F*** his mother and his

entire f****** family !!!! What a LOSER!!!! Vote YES for the UNION !!!!!!!!”

Upon learning of the post, the employer terminated the employee. The court held that while “vulgar and inappropriate,” the post was not sufficiently

egregious to lose its status as protected activity.

855 F.3d 115, 125 (2d Cir. 2017).

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Mexican Radio Corp. Former employee who had recently resigned sent a group email to several current

employees complaining about the wages, work schedules, tip policy, and treatment of workers. Four of the current employees responded to the email chain agreeing with the

concerns raised by the former employee. Management terminated the four employees because the emails were “extremely

insulting,” “deeply insubordinate,” and because they contained vulgar language. The NLRB concluded that there was no disruption to the business, and the limited

profanity in the email chain was not so egregious as to lose the protection of the NLRA.

2018 NLRB LEXIS 155, 266 NLRB No. 65 (April 20, 2018).

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Chipotle Mexican Grill Employee was terminated after he went on Twitter to complain about his wages

and being required to work on days when there was heavy snow and no public transportation. Employee also tweeted that a competitor did not charge customers for guacamole. After being directed to delete his tweets, the employee circulated a petition about

the chain’s failure to abide by its break policy and was fired after he refused to stop circulating the petition. The NLRB concluded that termination was unlawful because the

employee’s circulation of the petition was concerted activity.

2016 NLRB LEXIS 599 (Aug. 18, 2016).

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Non-Concerted Social Media Activity

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JT Porch Saloon & Eatery, Ltd. A bartender who engaged in a Facebook

conversation with a relative, in which he complained about his employer’s tipping policy, commented that the employer’s customers were “rednecks” and wished that the bar’s patrons choked on glass as they drove home drunk. No coworkers participated in the Facebook

conversation.

2011 NLRB GCM LEXIS 24 (Aug. 18, 2011); see also NLRB, Report of the Acting General Counsel Concerning Social Media Cases, Memorandum OM 11-74, at 14-15 (Aug. 18, 2011).

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Is the Concerted Social Media Activity Protected? Even if an employer reasonably concludes

that an employee has engaged in concerted activity, it must also determine if the concerted activity is protected under the NLRA. Concerted activity can lose the NLRA’s

protection if it is:– Maliciously untrue and made with the

knowledge of its falsity; or– So egregious that it loses protection of the

NLRA.

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Unprotected Maliciously Untrue Concerted Activity

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Butler Medical Transport LLC In Butler, a second employee posted on Facebook:

– “Hey everybody!!!!! Im f[****]n’ broke down in the same s[**]t I was broke in last week because they don’t wanta buy new s[**]t!!!! Cha-Chinnngggggg chinnng-at Sheetz Convenience Store.”

A review of the employee’s maintenance records showed that the vehicle was not down when the employee made the posts. Because the posts were maliciously untrue, they were not protected by the NLRA.

2013 NLRB LEXIS 584, at *14 (Sept. 4, 2013).

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Unprotected Egregious Concerted Activity

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Richmond Dist. Neighborhood Ctr. Two employees engaged in a Facebook exchange shortly after receiving a rehire

offer. In the exchange, the employees claimed that they would take students on “[f]ield

trips all the time to wherever the f*** we want” and that the program could just “figure out the money.” A supervisor who was Facebook friends with one of the employees, alerted the

center to the posts and the center rescinded its rehire offers. The NLRB concluded that the center did not violate the NLRA because “the

pervasive advocacy of insubordination in the Facebooks posts constituted conduct objectively so egregious as to lose the [NLRA’s] protection.”

2014 NLRB LEXIS 819, at *9 (Oct. 28, 2014).

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Regulating Off-Duty Conduct

Types of Off-Duty Conduct Legal but potentially undesirable conduct Social media activity Political activity Financial responsibility Illegal conduct

– Arrest or conviction for DUI, domestic violence, fraud

Conduct while on medical or disability leave

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State-Specific Lawful Off-Duty Conduct Laws

A number of states have enacted statutes protecting employees from discrimination or retaliation based on an employee’s participation in lawful off-duty activities. Certain states protect employees who:

– Smoke or drink outside of working hours;– Engage in various political activities; or– Volunteer in certain civic organizations.

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Social Media Policies

Developing Social Media Policies No “one size fits all” policy

– Every business is different– There may be different needs within the organization– You need to identify what you need and want

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Reasons for Having a Policy Set expectations clearly:

– What are “friending” rules?– What is considered “confidential information?”– What type of social media is encouraged, if

any?– Does the Company monitor employees?

Clarify what will be done when inappropriate conduct is discovered.

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Reasons for Having a Policy To be prepared to address situations when they arise. Define how much the Company needs to regulate “postings.”

– Only on working time/work device?– Only supervisory employees?– Only postings that violate other policies?– Has the Company balanced its needs against the NLRA?

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Reasons for Not Having a Policy Existing policies cover key issues:

– Confidentiality– Harassment/discrimination– Use of company work time– Defamation– Legal restraints

Potential NLRA violations Decision-making process supports disciplinary actions without policy Inconsistent applications

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Questions?

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This PowerPoint presentation is for informational purposes only and does not constitute legal advice or a legal opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.Copyright © 2018 Buchanan Ingersoll & Rooney. All rights reserved.

Thank you

Phone: 215-665-3812Email: charlene.gedeus@bipc.com

Charlene A. Barker Gedeus