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.
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.
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.