HR Tip of the Week

HR Tip of the Week

8 Ways Social Media Can Land You in Hot Water

The growing popularity of social media brings potential landmines for employers trying to navigate the hiring process and address and manage employee conduct. Here are eight social media practices that may be cause for concern:

Learning about protected characteristics on social media and allowing it to influence hiring decisions.

Federal, state, and local laws prohibit employers from making employment decisions based on protected characteristics, such as age, race, color, sex, religion, and disability. One of the risks of using social media during the hiring process is the potential for the search to inadvertently reveal this type of protected information.

If you intend to use social media during the hiring process, make sure you are taking steps to prevent protected information from influencing decisions (intentionally or unintentionally) and base all decisions on lawful, job-related criteria. Consider choosing someone outside the decision-making process to conduct the searches, give them a list of job-related criteria for which to search, and instruct them to provide you a list of all candidates who meet that criteria.

Neglecting to vet job-related information obtained from social media.

Even when individuals post information that appears to be job-related (such as their college degree) on social media, it may be inaccurate. Whether the individual intentionally embellished their accomplishments or someone else posted inaccurate information about the individual, make sure you verify the information before using it to make a decision.

Using social media's ad-targeting tools to discriminate.

Social media platforms contain a wealth of information on their users and some platforms allow employers to target job ads based on this information. Employers can violate anti-discrimination laws if they target ads based on a protected characteristic, such as a certain race or age demographic. Make sure job ads comply with applicable laws.

Disciplining employees for discussing their pay and working conditions with co-workers on social media.

Under Section 7 of the National Labor Relations Act (NLRA), employees have, among other things, the right to act together to improve wages and working conditions. These protections extend to discussions related to wages, benefits, and other terms and conditions of employment. An employee's use of social media to discuss or protest unfair working conditions, such as unequal pay, could be considered protected activity under the NLRA, and employers cannot discipline employees for, or prohibit employees from, engaging in such activity.

Asking employees for passwords to their personal social media accounts.

Several states prohibit employers from asking employees or applicants for their log-in credentials to personal social media accounts. Even in states that don't expressly prohibit this activity, it is a best practice to avoid requesting access to these accounts.

Note: Some of these states include exceptions for investigations into allegations of employee misconduct. Check your state law to ensure compliance.

Requiring employees to "friend" you on social media.

Many of the laws that prohibit employers from asking for access to personal social media accounts also prohibit employers from asking employees to add supervisors or other co-workers to their list of friends on social media. Since social media may reveal protected information, such as an employee's religious beliefs, supervisors shouldn't have access to such information. In the absence of a specific law, it's a best practice to avoid "friending" employees on social media.

Failing to investigate a complaint that an employee is being harassed by a co-worker on social media.

Sexual harassment can negatively impact an employer's business, create a hostile work environment, and violate employment laws. Employers can expect employees to abide by their sexual harassment policy during work hours as well as after hours and outside of the workplace, including on social media. If you are put on notice that misconduct may have occurred through social media, treat the misconduct just as you would if it had occurred in the workplace. Launch a prompt, impartial, and thorough investigation, and take immediate and appropriate corrective action to remedy the harassment and prevent it from recurring.

Taking adverse action against an employee for lawful off-duty conduct.

Social media might reveal an employee's conduct outside of the workplace. And while you may not condone the conduct, in many cases, employees are protected when they engage in lawful off-duty conduct. California, Colorado, Illinois, Minnesota, Montana, Nevada, North Dakota (among other states) have laws that prohibit employers from taking adverse action against employees for engaging in lawful off-duty activities or using lawful products while off-duty. For example, some laws prohibit employers from taking adverse action against an employee for drinking alcohol, consuming tobacco products, carrying a fire arm or gambling while off-duty. Other states have broader protections that cover all lawful off-duty conduct.

In the absence of a specific law, consider several factors before taking corrective action for an employee's off-duty conduct, including whether the conduct is job-related (affects the workplace or the worker's ability to do their job); whether the employee violated a company policy; whether that employee has engaged in similar activity in the workplace; and the potential risks should you decide to continue to employ individuals who in engage in such conduct.

Conclusion:

Many of the protections for applicants and employees offline may also apply to social media. Additionally, some jurisdictions have enacted laws that specifically protect individuals' personal use of social media. Make sure your policies and practices comply with all applicable laws.

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