Editor’s Note: Kyle R. Still and William A. Oden, III are members of the Labor and Employment Practice Group of Ward and Smith, P.A.
The impact of employees’ social media posts in the workplace has gotten significant amounts of attention in recent years. The National Labor Relations Board (“NLRB”) has issued numerous decisions expanding the concerted activity protections of Section 7 of the National Labor Relations Act (“NLRA”) to include social media posts. The NLRB has also struck down many employers’ social media policies for violating the NLRA.
In a different context, the North Carolina General Assembly is considering legislation that would prohibit employers from accessing the social media posts of applicants and employees for certain purposes. If this legislation passes, North Carolina would join an emerging national trend on this issue.
The United States Equal Employment Opportunity Commission (“EEOC”), which is tasked with enforcing the nation’s federal employment anti-discrimination laws, recently joined the fray. On March 12, 2014, the EEOC held a public meeting to discuss how the use of social media impacts the enforcement of these laws. It invited five employment attorneys from various backgrounds to provide testimony, and it also provided the public with an opportunity to comment.
Although the EEOC will likely issue more formal guidance at a later date, it has already issued a press release discussing the highlights of its meeting. This article will briefly address these highlights, as well as provide recommendations as to what your company can do to minimize its exposure in this area.
Discriminatory Information Can Be Gleaned From Social Media Posts
All employers can relate to the following situation. While sorting through applications for an open position, you identify one résumé that looks too good to be true. After checking the applicant’s references (and getting basic information in return), you call the applicant in for a personal interview. The applicant knows all the right things to say and is hired. After being on the job for a while, it is clear that the employee’s performance does not reflect the abilities promised by the employee’s résumé, references, and interview.
Many employers have taken to social media as a way of combating this common problem. In fact, employers’ use of this strategy has increased significantly in recent years. According to a study conducted by the Society for Human Resource Management, 34% of its members used social media in their employment screening processes in 2008. By 2013, that figure had increased to 77%.
Why are companies so attracted to using social media posts in the applicant-screening process? Social media posts allow a company to see an individual in an unfiltered manner. Perhaps the applicant’s Facebook® page includes information indicating the use of hate speech, the use of illegal or performance-hindering drugs, violent tendencies, or other issues prohibited by your company’s policies. This information more than likely would not be revealed in a résumé or discussed in an interview, but it could be very relevant to your company’s decision as to which applicant to hire.
Using another example, perhaps the applicant’s LinkedIn® profile includes information not included in, or inconsistent with, the applicant’s résumé (such as additional employers, varying dates, or differing education and training background information). This could present red flags to you requiring, at the very least, follow up. Thus, social media screening offers you as an employer many obvious benefits.
The greater levels of information available through social media screening, however, can also present hidden dangers to you as an employer. Social media sites often allow you to acquire information about the applicant’s race, color, sex, national origin, age, disability, religion, or other protected characteristics, whether from overt information on an applicant’s page (i.e., a profile photograph would likely indicate the applicant’s race, color, and sex, and may also indicate the applicant’s general age or disability status), or more subtly, information such as the fact that the applicant has joined a LinkedIn® group for Jewish professionals.
Screening out the applicant after discovering from social media profiles that the applicant belongs to a certain protected group would likely constitute an intentional violation of federal anti-discrimination statutes. Even if you do not act upon such information, it exposes your company to a charge of discrimination as a result of your access to such information and may result in your company suffering the expense and reputational harm inevitably coming from having to defend against the charge.
Can you minimize your exposure under these circumstances? At the public meeting, the EEOC recommended two alternative strategies. First, the EEOC recommended use of a third party to conduct social media screenings of applicants. While the exact scope of these third-party services was not addressed, the use of a third party is similar to the common employer practice of using outside vendors to conduct applicant background checks. In the social media context, the essential concept is to shield the employer from receiving any information about the applicant’s protected characteristics, while still verifying information provided by the applicant and discovering any other properly-considered red flags. For example, the third-party report may include information about references to racist language or drug use found on an applicant’s social media sites, without disclosing the applicant’s race, age, disability status, or other protected characteristics.
If you do not wish to use an outside vendor, the EEOC suggests that you designate a specific individual within your company to perform social media background checks. This employee should not be the ultimate decision maker as to whether or not the applicant is hired. While more precise rules on this point likely will be fleshed out by the EEOC in its formal guidance, it would be the best practice for your designated employee to be trained on how to identify relevant information that is unrelated to protected characteristics.
Social Media Screening Could Lead To Discriminatory Impact Claims
The example in the preceding paragraphs dealt with discriminatory intent – instances in which a company is accused of purposefully treating applicants with certain protected characteristics differently because of those characteristics. The federal anti-discrimination laws have also been interpreted to protect against policies and practices which have a discriminatory impact – that is, the policies or procedures adversely impact persons with protected characteristics more often than persons who don’t possess those protected characteristics. This prohibition applies even in the absence of discriminatory intent by the employer.
Use of social media screenings has the potential to arguably result in a discriminatory impact. Scientific research shows that African-Americans and Latinos are less likely to use social media sites than the rest of the population. Furthermore, older individuals are less likely to use social media sites, and certain disabled individuals may not be able to use them at all.
If you utilize social media as part of your applicant screening process, you need to be aware of these limitations on their proper use. Utilizing a broader applicant screening process that is not solely or primarily focused on social media is the best practice.
Employees’ Social Media Posts Can Violate Employers’ Harassment Policies
The EEOC also wants employers to be aware that their employees’ social media posts can result in an actionable hostile work environment. This can be the case even if an employee’s offensive post occurs after hours. If you are aware of social media activity that potentially may be harassing another employee, you have an obligation to investigate the matter promptly in the same manner you would any other harassment claim. The EEOC also noted that you can be liable for harassment that originates from devices you provide to employees, implying that you are on notice of the activity solely as a result of providing the equipment.
The rules and regulations related to social media in the workplace are evolving constantly. You need to educate your company’s officers and managers on their obligations regarding use of social media postings. If you have not done so already, you need to revise your social media policies to ensure compliance under the NLRA and equal opportunity laws, rules, and regulations.
With regard to federal anti-discrimination laws, you need to ensure that your screening practices and procedures do not allow the acquisition by your relevant officers and employees of non-job related information related to any employee’s or applicant’s protected characteristics. This may require using an outside firm to conduct social media background checks, or it may necessitate designating an individual within your company who is educated on the proper use of social media posts without acquiring protected information. You also need to revise your screening practices and procedures to ensure that you do not recruit solely from social media sites or consider only applicants who use them, which may unintentionally screen out applicants of certain protected classes. Finally, you should revise your harassment policies and procedures to make clear that harassment through social media postings, even if done outside of working hours and away from the workplace, is prohibited.
© 2014, Ward and Smith, P.A.
Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Kyle R. Still and William A. Oden, III practice in the Labor and Employment Practice Group where they represent clients in a wide range of employment litigation and regulatory and legislative matters. Comments or questions may be sent to email@example.com or firstname.lastname@example.org.
This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.