Social Media: Be Aware of The Law
The utilization of Facebook, Twitter,
and MySpace in the place of work is
escalating, and employers should
know the dangers that occur with it.
Consider this hypothetical: An
administrator in control of hiring at her
skilled nursing facility needs to find one
new staff member and has five resumes,
all of which appear ample. What’s
the first thing she does? That’s right,
she Googles them.
She scans over links to their high
school class reunions, possibly some
noteworthy events that made the local
papers, possibly even a specific thing they
have written. At last, she comes to a
juicy link-a Facebook web page. Aha! Now
here’s the high-quality stuff.
But thinking prior to clicking is the
best counsel in this situation. Why?
The legalities adjoining the ability
to examine an applicant’s Facebook page
are not clear cut. Sure, employers are
entitled to look at an applicant’s Facebook
page, as long as they satisfy certain
requirements. And fair enough, employers are
entitled to utilize what they uncover there,
provided they do not use it in an inappropriate
Steer Clear of the Pitfalls
So how does one circumvent the pitfalls
of a potential lawsuit plus still get to
check out what the job seeker has been
First, the person in pursuit of the information
must access the page herself.
Hiring a 3rd party to execute it, perhaps
in concert with a criminal or credit
background check, might be considered
an act under the jurisdiction of the Fair
Credit Reporting Act, which has notice
and discovery specifications that could
render this kind of an act illegal.
Second, don’t be sneaky. A lot of applicants
will have their Facebook or
MySpace blocked. If it’s blocked, it’s
blocked. Some of the more creative
types may attempt to think of methods to access
this data . Establishing an alias account
or attempting to guess the passwords
are “no nos.” The data needs to
be openly available.
Using any type of ruse to access
an applicant’s information puts an
employer at risk of a privacy lawsuit.
The other method to generate a Facebook
lawsuit is to utilize information the
wrong way. This point of view is a little stickier.
The main point to take into accout is that
employers are not able to discriminate against
someone. This is as valid in cyberspace
as it is in person, which means that
using any information learned in a
discriminatory method cannot be used.
Translation: Using Facebook to screen
out applicants based on discriminatory
criteria such as race, gender, religion,
or disability is utterly unlawful. If
caught doing it, employers will be sued.
Enter the Genetic Information
Nondiscrimination Act, or GINA. It
has a cute name, but it’s a genuine problem
for any corporation that wishes to check
an applicant’s social media site. Under
GINA, an organization is not permitted
to collect genetic details about
employees or prospective employees.
Notice it states “acquire,” not “use.”
There are exceptions to this law, but
because it is fairly new, the courts
have not given employers much guidance
on where the lines are.
The way the law is written currently, if
an employer checking an applicant’s
Facebook web page discovers that the applicant
participated in a multiple sclerosis
fund raiser on behalf of her father, that
employer has just violated GINA.
The corporation has obtained genetic
information, which triggers the
violation even if it’s not used in support of any
purpose. This is one area of the regulation to
monitor while it develops.
Protect Worker Rights
One hopes, by now, most employers
know about the significance of social
media policies. Together with this in mind, it’s
important to understand that employees
have rights, the government has laws,
and a policy can’t infringe on either.
The National Labor Relations Act
(NLRA) gives employees the right
to interact in what’s called “concerted
activity.” Normally, it protects employees’
rights to talk openly among one
another and their employer regarding the
terms and conditions of their employment.
These protections apply regardless
of whether or not the workers are
unionized or not.
The risk as an employer is that its
policy may be overly broad and infringe
on employees’ NLRA rights. There are
a number of issues that employers can
and should restrict in their social media
- Confidential or proprietary information
of the organization along with its clients,
patients, and vendors;
- Embargoed data such as
launch dates of new forthcoming services
or products, release dates, and pending
- A company’s intellectual property,
such as new concepts and innovations;
- Explicit sexual references;
- References to prohibited drug use;
- Use of obscenity or profanity; and
- Derision or harassment
of any person on the grounds of race,
religion, gender, sexual orientation, disability,
or national origin.
There is one additional element that many
employers would possibly like to have,
but must be careful about including in
social media policies: restricting employees
from disparaging the company
or competitors’ merchandise, services,
executive leadership, staff, strategies,
and business products.
Disparaging comments can be very
damaging to a company, but restricting
them does come near to infringing
on employee rights to comment on
their employment conditions under the
NLRA. There is some legal authority
out there suggestive of these kinds of restrictions
are permissible, but it’s still a risky
Watch Those Testimonials
The National Labor Relations Board
(NLRB), the body charged with
implementing the NLRA, lately underwent
a seismic change in its structure, and
many observers expect it to assume a much
harder policy against employers allegedly
in violation of the act.
As much as employers may need to
include this in their social media policy,
the practical avenue of action for now is
not to. If the regulation adjusts or even gets
clarified, having this restriction could
put an employer at the unsuitable end of an
Unfair Labor Practice Charge before
Better to delay until the issue has been
FTC Weighs In
The NLRA is not the lone federal
regulation creating further challenges for employers
and social media. The Federal
Trade Commission (FTC) has promulgated
a statute that requires people
providing endorsements or testimonials
about a company’s products to disclose
any relevant links they might have
to the company that produces the product
or service. Huh?
In non-legalese, this means that
if a corporation develops a brand new
widget, its workforce can't run around
in secret posting on websites and
social media sites this new widget is
the greatest ever. The crucial expression in that
sentence is in secret. Employees
are undoubtedly free to provide endorsements
or testimonials about the widget,
but FTC regulations demand that they
identify themselves as employees of the
The intent behind this is that
consumers are entitled to take into account this
material relevance in assigning credibility
to the testimonial.
Devise Social Media Guidelines
There’s a great deal more to disclose about the
risks of social media, but all reports
must come to an end. A beneficial parting
notion to bear in mind is that while
social media guidelines are a inevitability,
they are not a universal remedy. They will have to be
drafted well and enforced correctly.
Whether employing social media to understand
more regarding prospective new employees or
attempting to put into effect a social media
policy to give protection to the organization, the path
is laden with hazards and legal responsibility.
The World wide web owes its vibrancy in
major part to the veil of anonymity
individuals feel when they use it. As regulation and
technological know-how set out to catch up, employers
can no longer merely assume that what
transpires on the Internet, remains on the
Internet. They need to form meaningful
regulations, apply them, and remain