As social networking sites like Facebook.com and MySpace.com continue to grow in popularity, employers are catching on and reviewing the profiles of applicants and employees. Although social media may appear to be a cheap and convenient way to obtain an increasing amount of information regarding these individuals, employers must be aware of the host of potential legal pitfalls that await those that choose to use social media, three of which are discussed below.
AuthenticityFrom the outset, employers that choose to investigate applicants and employees using social media should not overlook the fact that the profiles they find are not always authentic and trustworthy. While this may seem obvious, employers should ensure that the information they find when reviewing a candidate's profile is actually about the applicant they are considering, and not someone with the same name. More troubling than mistaken identity, however, is a disturbing new trend among college students: creating fake explicit or unflattering profiles of other students they view as competition for jobs with the intent of tarnishing their reputation in the eyes of a prospective employer. Accordingly, employers should remember not to believe everything they see.
Background ChecksIn using social medial to investigate potential employees, employers gain access into part of applicants' personal lives that has been traditionally unavailable or off-limits during the hiring process. This knowledge can set an employer up for claims of employment discrimination. An individual's online profile may reveal information regarding sexual orientation, parental status, disability status, age-related information, and/or nationality. The problem for an employer is that once this information is known, it will be hard to prove that a hiring decision was not based on a person's protected status in a subsequent lawsuit alleging discrimination in the hiring process. In this way, many of the measures taken by employers to ensure a non-discriminatory hiring process can be undermined by the use of social networking sites. Accordingly, employers who choose to examine these sites should proceed with caution and consider taking steps to protect themselves, such as: (1) waiting to review online information until after a conditional job offer is given to an applicant; (2) documenting the use of a social networking website along with the legitimate business reason for a decision not to hire; and (3) training and refreshing all individuals involved in making hiring decisions on state and federal antidiscrimination laws. Conditions of EmploymentAnother potential danger arises when an employee uses social media to discuss terms and conditions of employment. "Terms and conditions of employment" has been construed quite broadly, and includes virtually all aspects of the work environment from wages and benefits, to a supervisor's competence. While an employer may prefer to keep such information confidential, or may be offended by an employee who says something negative about work in the social networking world, federal labor law allows employees - even those who are not unionized - to engage in protected concerted activity for their own benefit. This could arguably include a situation where several of your employees communicate with each other online. Accordingly, before issuing any discipline to an employee in response to an online post, an employer should consider whether the post is protected by federal labor law.
If you have any questions about the legal impact of social media on your business, please contact Ellen Glass at 602.440.4887, or any member of Ryley Carlock & Applewhite's Labor and Employment Department. PDF Version.