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Nearly every company is struggling with how to best handle social media use at, and relating to, the workplace. A recent white paper from national employment law firm Jackson Lewis, LLP points out some of the legal dangers in confronting employees over their use of social media.
When might you want to discipline over social media? There are a myriad of scenarios, Jackson Lewis says. For example, an employee:
Jackson Lewis’s real-life examples include:
Before deciding to take an adverse employment action against an employee based on his or her social media use, you should consider the following possible legal constraints, says Jackson Lewis:
Could the employee be protected by the National Labor Relations Act?
The federal NLRA affords employees (even those who are not unionized) the right to engage in “concerted activity,” including the right to discuss the terms and conditions of their employment—and even to criticize their employers—with co-workers and outsiders.
Not all concerted activities are protected by the NLRA; only those activities that are engaged in for the purpose of collective bargaining or other mutual aid or protection are covered.
Could the employee be protected under a whistleblower statute?
Federal and state whistleblower laws may protect employees who complain about company conditions affecting public health and safety as well as employees who report potential securities fraud violations.
For example, the Sarbanes-Oxley Act of 2002 prohibits employers from terminating employees for “providing information, causing information to be provided, or otherwise assist[ing] in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of … any rule or regulation of the Securities and Exchange Commission, or any provision of federal law relating to fraud against shareholders.”
Got an updated social media policy that’s California-compliant? We do.
Was the communication related to political activities or affiliations?
Many states, including California, prohibit employers from regulating employee political activities and affiliations or influencing employees’ political activities. Taking action against an employee for objectionable political speech could violate these restrictions.
Was the employee engaging in “legal off-duty activity” protected by state law or illegal activity?
Some states have “lawful conduct” laws that may protect an employee or applicant’s legal off-duty activities.
For example, under California law, an employee is protected from “demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”
Thus, in some states, an employer may be prohibited from terminating an employee who, for example, posts pictures of himself intoxicated at a party (assuming the employee is over 21 years old). In contrast, the employer may have more leeway where the conduct is illegal (assuming the employee is under 21 in the example provided).
The law is far from clear in this area, and employers should consider each situation independently, Jackson Lewis suggests.
101 must-have employee handbook policies—fully updated for 2012 and specifically written for California employers.
Does the employee have a potential discrimination claim?
When using social media to vet job candidates, an employer may inadvertently become aware of an applicant’s protected characteristics, such as race, age, sexual orientation, marital status, disability, and even genetic information.
If the employer decides not to hire the applicant, the applicant could sue the employer, alleging that the decision was discriminatory. This is the precise reason most employers stopped requiring applicants to submit certain information with their resume or application; searching social networking sites may reveal such information and open the employer to the very risk it tried to avoid.
One practical option is to have someone who is not a decision maker at the company conduct the search to filter out protected information. This person can then provide the “scrubbed” information in document form to a decision maker for review.
In tomorrow’s CED, Jackson Lewis’s recommendations for a social media policy, and an introduction to a one-stop solution for all your policy needs—specifically for California employers.
Download your free copy of 20 Must-Have Employee Handbook Policies today!
Fortunately, some workplace Twitter incidents are cut and dry, like the Congressional staffers who documented their bad behavior in the office (including drinking on the job) on their Twitter feeds: www.politico.com/.../70116.html. Fire-able offenses don't become non-fireable simply because they appear on social media.