4 tips on social media and employment law – KDHRA luncheon

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What an honor ~ and a challenge ~ to prepare the presentation on “Social Media and Employment Law” for the April meeting of the Kane DuPage Human Resources Association.

In introducing the topic, I recommended that the HR professionals gathered for the meeting keep in mind three things:

  1. I’m not an attorney.
  2. How employment laws impact social media concerns and vice versa can be complex and even subjective. So we would focus on examples from recent precedents.
  3. I’m not an attorney. Yes, the same as point #1; just for emphasis.

Given the prevalence of social media in our personal and private lives (with at least 77% of adults online using one or more sites), these technologies have the potential to impact every aspect of employment: prospective employees; current employees; and previous/former employees. They also have the potential to impact many aspects of business transactions, from confidentiality and proprietary information to employee/supervisor relations.

Some highlights from our discussion:

  1. The EEOC increasingly looks at how the use of social media by employers may violate established standards. This can include how advertising choices for open positions may cause disparate impact, as well as how reviewing individual social media accounts for prescreening may cause disparate treatment.
  2. The NLRB increasingly examines how employer policies and handbooks (including social media policies) may inhibit protected concerted activity. For use of social media by employees, “likes” on facebook, “favorites” on twitter, posts, and comments may well be protected concerted activity with respect to wages, working terms, and/or working conditions.
  3. The NLRB is aware that more employers are including statements in employee handbooks and manuals that generally advocate respectful treatment of other employees as a positive workplace culture. Some of these statements about courtesy and respectfulness can be construed as overly broad and even unlawful since Section 7 conversations can be contentious, conflictual, and even hostile (including social media interactions that relate to protected concerted activity). A recent report from the General Counsel of the NLRB noted that the context of language about respectful treatment makes a difference, including treatment of employees via social media. So, for example, including the language in a handbook section that explicitly addresses serious misconduct and/or illegal actions such as harassment, bullying, and violence may increase its lawfulness.
  4. In Illinois, it is unlawful for an employer to ask an employee for their user ID, password, or other identifying information for a personal social media account. Yet there may be circumstances in which an employer needs to review or monitor the public content of such a social media account. For example, an employee may come to her supervisor with a screenshot of a harassing message she received on facebook from another employee. Even though the message may have been sent using a personal account, on personal time, and using a personal device, the employer may still need to treat this as potential evidence of harassment and take established steps to investigate and resolve this harassment complaint.

Contact me at Frank’s Employment for more information about my presentation, as well as the resources used for researching it. Our next KDHRA meeting is scheduled for Tuesday, May 19th, at Oscar Swan Country Inn.

by Elyse Williamson
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