Social Media may be all the rage, and social media posts may be very revealing, but employers need to move cautiously before investigating or regulating such information with applicants or existing employees.

It’s no secret that like most new technology, social media use raises legal issues that have yet to be sorted out by legislation or court decisions. Nevertheless, over the past year, some relatively clear guidance has emerged concerning lawful monitoring, regulating and use of social media information in hiring and other employment decisions. At the very least, one can see a trend on how existing laws and legal concepts are being applied to social media issues with respect to hiring and the sharing of information on social media. That trend suggests that employers need to be very intentional about how they use information obtained via social media, despite the inherent informality of that medium and the information commonly shared in that setting.

Social media information and the hiring process

It is now commonplace for employers to use social media sites to recruit and investigate employee candidates. LinkedIn use by employers to locate potential talent is very common, but an increasing number are also scrutinizing Facebook and Twitter posts to evaluate prospective employees.

Although some employers in the past went so far as to require applicants to provide access to their personal sites, that practice generated predictable public outrage and prompted a number of states to pass “social media password protection laws.” In a complementary development, a recent federal decision from a United States District Court in the District of New Jersey (Ehling v. Monmouth-Ocean Hospital Service Corp.) held that Facebook wall posts that are protected by the user’s privacy settings satisfy all the requirements for protections under the Federal Stored Communications Act (SCA). Unless such materials come to an employer through properly authorized access, possibly from some other employee or someone else who had authorized access, such social media materials cannot be reviewed by the employer.

The upshot of these developments is that employers are ostensibly prohibited from reviewing an applicant or an employee’s “private” social media information. However, they remain essentially free to examine whatever information is “publically available” on an applicant’s Facebook pages, to the extent that an applicant’s privacy settings do not restrict it.

That sort of search of the publically available online material may still reveal a considerable amount of personal information on an applicant, information to which an employer would otherwise not likely have access in the course of an ordinary application process. Applicants’ Facebook posts, information on organizations and comments that they have “liked,” comments on events they plan to attend, people with whom they associate, places they have been, and so on, may reveal far more about an applicant than any employer would ever learn in a review of an applicant’s resume, application or properly structured interview.

The issue is that such social media information may easily suggest or even conclusively indicate facts about the candidate that would line up with “protected characteristics” such as age, gender, marital status, pregnancy, race, ethnicity, religion, national origin, citizenship, sexual orientation, disability or military status. Facebook posts and Twitter tweets frequently include comments that reveal all kinds of information relevant to these characteristics. Employers who access this public information while conducting online searches are not violating any employment laws, but the risk is that once they have this information, any employment decision can be questioned in relation to any protected class issues conveyed by such information. In a nutshell, the review of social media sites often provides “protected class” information about a candidate that an employer may not lawfully consider when making employment-related decisions. The fact that the employer now has knowledge of protected class information, as a result of such online searching, eliminates one of the best defenses to employment discrimination claims at the hiring stage – namely that employer knew nothing about such information when making the hiring decision.

Given that employers may understandably want to investigate legitimate concerns as part of the hiring process, and social media searches may be useful on that score, certain precautions should thus be followed:

First, consider limiting your use of online research to candidates who have already been interviewed (or have passed some level of preliminary screening) and seem promising. That way, you don’t risk asking improper questions at an interview, based on information learned through your online search, and you don’t risk having to deal with questions relating to social media information on why a particular candidate did not make it through the level of screening that led to an interview.

Second, after the interview, or at whatever stage you decide to pursue such research, have a person who is not the employment decision-maker conduct the search and review of the social media information. This can be done internally by creating a “wall” between the person conducting the social media search and the person making the employment-related decisions, or the employer can hire a third party to conduct background checks including searches of public information on social media sites. The investigator needs to be instructed that only information relating to legal, pre-defined criteria can be conveyed to the decision-maker. It must be clear that no additional information can be conveyed, to insure that characteristics regarding protected class information are not disclosed to the employer or manager making the hiring decision.

(Note, however, that employers who use a third party Consumer Reporting Agency (CRA) to conduct such background checks are required under the Fair Credit Reporting Act (FCRA) to get written authorizations from applicants prior to the investigation and give a FCRA notice regarding any adverse actions based on the CRA’s report. State and local laws may also apply to pre-employment background checks. Here, it would be prudent to consult with local legal counsel prior to conducting more extensive background investigations.)

Third, employers need to have policies in place regarding use of social media research and hiring, and apply them consistently. Online research should be used consistently in accord with some defensible criteria, or not at all. An arbitrary decision on who gets an on-line background check and who does not may itself lead to discrimination claims.

Limiting Social Media Communications and Discipline of Current Employees

Employers also need to be careful when drafting workplace policies and making disciplinary determinations relating to social media communications. In this area in particular, non-unionized employers may find themselves to be the target of unexpected attention from the National Labor Relations Board (NLRB).

The NLRB has recently issued several decisions in social media cases and in other cases dealing with confidentiality agreements, pressing on the reach of the National Labor Relations Act (NLRA) to protect certain rights for both unionized and non-union employees.

Many non-unionized employers may not be sensitive to the fact that Section 7 of the NLRA provides that both union and non-union employees have the right to engage in “concerted activities” for the purpose of their “mutual aid or protection.” Section 8(a)(1) of the NLRA prohibits an employer from interfering, restraining or coercing employees in the exercise of the rights guaranteed in Section 7. Such protected “concerted activities” include, in particular, communications with co-workers and third parties about “wages, hours, and other terms and conditions of employment.” It is easy for employers to run afoul of these provisions when they seek to restrict employee communications, or prohibit what they see as defamatory comments, when these are made on social media.

Along this line, in a growing number of recent cases, the NLRB has considered whether an employer’s actions in limiting Facebook posts in fact compromises or limits the right of employees to exercise their Section 7 rights in violation of Section 8 of the NLRA. And again, these decisions apply to both union and non-unionized employers.

This past April, for example, the NLRB awarded reinstatement and back pay to non-union employees in the Design Technology Group ruling who were terminated for posting, on Facebook, derogatory statements about their supervisor. The NLRB concluded that the employees’ Facebook posts constituted “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment . . .” and that the conversations were “for [their] mutual aid and protection. . . .” Therefore, the terminations violated Section 8(1) of the NLRA. In other words, under the NLRA, employees have a right to criticize their supervisors among each other (as limited to those instances appropriate for their “mutual aid or protection”), and that right is still protected even if they do so publically on social media and such comments will convey an unfavorable impression about the employer.

The NLRB has also focused on whether the employer’s policies themselves are a violation of labor law, regardless of their application. In one of a series of cases, the NLRB has complained that an over-broad social media policy, which prohibits employees from posting statements online that harm the employers (or anyone else’s) reputation will itself be a violation of the NLRA. No part of that employer’s policy carved out protected communications under the NLRA. Therefore, the Board concluded the policy itself “would reasonably tend to chill employees” from exercising their Section 7 rights. Likewise, a policy that required employees to exercise “courtesy” in their posts was found to violate the NLRA because the employees could “reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language’ which injures the image or reputation of [the employer] as encompassing Section 7 activity.”

In light of such NLRB decisions and their accompanying guidance documents, employers should follow certain precautions in drafting and implementing social media policies:

First, such policies should avoid overbroad or vague language prohibiting “inappropriate,” “unprofessional,” or “disparaging” comments about the workplace or management without providing specific examples. Similarly, such policies should avoid broad terms such as “non-public” or “confidential” without the use of limiting language, because employees may reasonably construe it to limit discussions about working conditions. Such overly broad policies are likely to be viewed by the NLRB as “chilling” protected employee speech, and in such instances the policy itself may be regarded as an unfair labor practice.

Second, in carrying out and enforcing such policies, carefully consider the reasons for disciplining or terminating an employee who has posted offensive statements online. If the postings discuss working conditions, a supervisor’s behavior, or other concerns about wages or benefits, they may be protected under the NLRA, and it would be prudent to consult with legal counsel before disciplining or terminating an employee. Here, as in the cases cited above, terminating or disciplining an employee over that employee’s complaints about working conditions invites NLRB action.

While the law in the area of social media is still evolving and developing, some risks are clear. If social media is the new “water cooler” for talk at the work place, employers and HR managers need to move carefully, weighing state and federal laws, including NLRB decisions, and consult with legal counsel when reviewing, revising and enforcing the employer’s social media policies.