As an employer, what avenues of social media can be used to learn about job applicants? Is an employee’s online comment (made on personal time from his home computer) about an employer protected under the National Labor Relations Act? How are post-employment references handled in a world where LinkedIn may contradict an employer’s evaluation?
“A Conversation about Social Media” was hosted by the Rochester Black Bar Association and the New York State Bar Association’s Labor and Employment Section. Kate Martinez, an associate at Nixon Peabody who is active on the firm’s Privacy and Data Protection team, and Joseph Carello, a Nixon Peabody associate who co-leads the firm’s Social Media Law team and an active member of the Privacy and Data Protection team, each presented a series of points relevant to these topics.
NYSBA chair-elect for the Labor and Employment Section, Sharon Stiller, was present to introduce the topic and to add her experience to the conversation, and RBBA President Shani Mitchell introduced the speakers. The free informative program was held at Nixon Peabody on Aug. 13.
The Equal Employment Opportunity Commission cautions employers on the use of social media and financial background checks in make hiring decisions. If using such tactics to screen applicants, an employer must uniformly apply its screening policy to all applicants, and must recognize what information cannot be considered.
The Federal Trade Commission indirectly endorsed the use of third party vendors that provide background information on job candidates in May 2011 when it decided not to take action against Social Intelligence Corp. after investigating the firm for Fair Credit Reporting Act compliance.
Carello explained, “It’s important for an employer to have a written policy on what resources will be used in background checks and then be consistent. It is best if a non-decision maker conducts the search and filters out any protected class information.”
The accompanying slides provided additional pointers regarding an employer’s applicant screening policy, such as 1) list social media that will be used, 2) don’t “friend” applicants to gain access to non-public profiles; and 3) create a list of lawful information desired in every search.
For the employer, having a clearly stated policy in place is critical. For the employee: know what that policy is and in most cases, don’t expect privacy on your work computer.
What if a former colleague is blasting your employer on Facebook? Example:
Ex-employee posts: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly! Now I OWE money.”
Employee # 1: LIKED
Employee # 2: COMMENTED “I owe too. Such an asshole.”
When employees 1 and 2 were fired, the National Labor Relations Board said the firings were unlawful in Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014).
The prevalence of LinkedIn has changed the dynamics of post-employment references. Again, an employer looking to stay out of litigation should have a policy that specifically addresses social media.
With electronic communications and record keeping, how does an employer keep sacred files like client lists protected upon an employee’s dismissal? An employer must manage the former employee’s access to websites, Facebook and Twitter accounts in the event of employee dismissal.
In a first of its kind lawsuit in Minnesota, an employer is suing a former employee who allegedly violated his non-complete agreement by sending messages to former clients and coworkers via his LinkedIn account.
FCRA and FACTA
The Fair Credit Reporting Act and Fair and Accurate Credit Transactions Act addresses and regulates the circumstances under which employers can use such reporting agencies to obtain background information and to rely on that information in making hiring, promotion, transfer and other employment decisions.
If this kind of applicant/employee credit check is done, there must be clear disclosure to the applicant of the nature and scope of the investigation, in writing, and an offer of an opportunity to inspect and receive copies of such reports.
“There has been an explosion of class actions on these types of privacy issues,” explained Martinez, referring to both the Big Lots and Kohl’s cases.
Employers have a responsibility to protect employee information, and to properly dispose of sensitive information obtained through background checks and during employment.
Section 203-d of the New York Labor Laws lists the personal information that must be safeguarded by employers: Social Security number, home address, driver’s license numbers, etc. An employer can be fined $500 per violation if they fail to implement policies or procedures to safeguard against violations, including procedures to notify employees of these provisions.
If personal information of employees is kept in an electronic format, the employer must ensure that the data is stored in a secure computer system, limit access to such data and take precautions to ensure that such data cannot generally be taken off-site.
In summary: The key to employer compliance seems to be clear, written policy.