Social media can present especially tricky situations for employers as they try to navigate the often hazy laws surrounding it. In both the hiring and termination process, there are certain things that every employer needs to be aware of to protect themselves against legal issues. Although sites such as Facebook, Twitter, LinkedIn, and others can be beneficial for online marketing and connecting with customers, they can often create more problems between organizations and their employees. Watch out for these five employment issues that businesses using social media face.
Hiring Issues Presented by Social Media
When employees are active on social media, it can be difficult to control the flow of information If you have hired a new employee with a confidentiality agreement from a former employer that bars him from contact with previous clients, it can be difficult to maintain the agreement in the presence of social media. If the employee posts on their social media profiles that they have a new job with you, and they have any links to previous clients online that are notified of the change, they can be sued for a breach of contract and your company can be sued for interference with that business relationship.
Employers also face liability risks if they screen potential employees online prior to making a hiring decision. Because they contain a wealth of information about job applicants, many organizations use a preemptive investigation on social networking sites as part of their screening process for new employees. However, this presents a problem because hiring decisions must be based on information that is lawful for the employer to acquire (e.g., previous experience, skills, illegal drug use or discriminatory tendencies) and not protected information that employees do not have to disclose, such as religion, sexuality, or political views, which may be found on their social media sites. If these are noticed by a potential employer and, consciously or not, affect their hiring decision, the company is in violation of anti-discrimination laws.
Termination Issues Presented by Social Media
If a specific employee is in charge of social media, they may have claim to the contacts developed through the company social media sites. Especially in the case of recruiters and individuals dedicated to networking and creating business contacts, there could be legal implications if there is no policy in place regarding who has access to the network of people created when they leave. One solution is to agree in the hiring process that when the employee managing the social networking leaves, both they and the company will retain a list of the contacts when their employment ends, and that they will be responsible for helping their successor build upon those contacts on behalf of the company.
Claims of wrongful termination or a hostile work environment can also be directly influenced and created by social media. Issues regarding discrimination could arise if an employee who is terminated has been previously discussed on social media. A hostile work environment can also be claimed if there have ever been negative comments on social media toward a terminated employee about protected information such as religion or sexuality that would have only been available on their private profile.
- In many cases, employees cannot be fired even for posting content on their social media sites that employers disallow or that negatively affects the organization. The National Labor Relations Act can protect employees who post online about changes in wages, benefits, or anything that affects a group of employees. Under the NLRA, this may be considered engaging in a protected activity. Additionally, protections for whistleblowers that post online or publicly share information about organizational practices that are in violation of a variety of regulations exist under many state and federal laws.
If your business is facing any of these issues, contact Berkowitz Klein LLP, we can help.