THINK TWICE BEFORE “DISLIKING” A JOB APPLICANT OR EMPLOYEE

Businesses are embracing social media to sell their products, strengthen their brand, improve customer loyalty, or attract outstanding job candidates, but they should consider the legal implications of these actions. Reema Kapur (http://www.seyfarth.com/ReemaKapur), an attorney with Seyfarth Shaw LLP, examines some risks associated with social media use that may trap unwary employers.

Social media is exciting. For businesses, it can be an effective tool to get the word out about a product or service or to find the most qualified person for a job opening. Social media is also scary—a negative tweet or photograph that goes “viral” may tarnish a company’s brand and leave businesses vulnerable to potential legal risk.

Using social media to find employees or customers raises a litany of questions.

• Can an employee download and post confidential company information on a personal social media account?
• Can an employer ask job applicants for their Twitter login information?
• What should an employer do when employee A complains about a Vine posted on employee B’s Facebook profile?

The hypotheticals, and potential legal complications, are never-ending. It is important for employers to understand the gray area between what is professional and what is personal when it comes to employees’ social media activity. They also need to know what type of online conduct is legal and what conduct may pose legal risks.

So before you click “dislike” on your next applicant or employee, consider the following areas of potential risk: Federal and State Privacy Laws. Many federal and state privacy laws govern what employers can and cannot do in connection with employees’ use of social media in the workplace. For example, since 2012, a wave of state laws called “social media password-protection legislation” has been introduced in approximately 36 states and enacted in 12 states. These laws were proposed because of lawmakers’ perception that employers were asking job applicants or employees for their social media account information as a condition of getting or keeping a job. State lawmakers acted quickly to curb what they perceived as employer intrusion into employee privacy. In most states where these laws have been enacted, social media legislation bars employers from asking for social media login information from job applicants and employees. However, each state’s password-protection law is different in terms of whether it covers “business” or “personal” social media accounts and whether it allows employers to ask for login information in certain circumstances. In some states, employers are allowed to request access to their employees’ social media accounts if, for example, the employer is investigating allegations that the employee used social media to harass a co-worker. Similarly, some states allow employers to access employees’ social media accounts if the employer has reason to believe that the employee violated workplace policies, by, for example, downloading confidential or proprietary company information. However, in other states, password-protection legislation may not contain any exceptions and may completely bar employers from requesting login information under any circumstances.

With a slew of incomplete and non-uniform state legislation in effect or on the horizon, employers of all sizes will need to know what laws apply to them and may need to adapt their workplace policies to unique state requirements. In addition to state law, some employers are also subject to federal privacy law such as the Electronic Communications Privacy Act (ECPA), Stored Communications Act (SCA), and the Computer Fraud and Abuse Act (CFAA). These federal laws further dictate how employers can regulate or monitor electronic communications and they generally bar employers from accessing or reviewing employee email communications without the employee’s prior consent.

Recruitment: Recruiting prospective employees through social media is trending worldwide. According to recent surveys, 73% of employers use online social networks or social media sites to vet job candidates. Further, 58% of employers have successfully hired candidates through the use of a social networking website. But unfortunately, as employers’ use of social media in recruitment goes up, so does their liability. For example, a human resources employee who vets candidates by viewing their LinkedIn profiles may discover a job candidate’s race, national origin, disability, or gender, among other “protected” characteristics. Various federal, state, and local laws prohibit employers from taking into account any “protected” characteristics when they make employment decisions. Whether or not an employer relies on “protected” characteristics, the employer’s knowledge of this type of information may be enough grounds for a rejected candidate to file a lawsuit alleging discrimination.

Thus, employers who are not careful when using social media to recruit job candidates could face an investigation from the Equal Employment Opportunity Commission (EEOC) or state or local anti-discrimination agencies. The National Labor Relations Board. If you think non-union employers need not worry about the National Labor Relations Board (NLRB), think again. Indeed, when it comes to social media, the NLRB is aggressively investigating non-union employers of all sizes. Whether your company is large or small, unionized or completely free market, chances are the NLRB applies in some way to you. In the NLRB’s opinion, enforcing restrictive social media rules in the workplace may violate federal labor laws. Specifically, the NLRB has taken the position that federal labor law guarantees union and non-union employees the right to organize and engage in certain activities for the purpose of “mutual protection.” For example, in a recent memo, the NLRB said that it is unlawful for employers to prohibit workers from posting information online about their employer, even if the employer considers the information to be confidential. This means that employees’ Facebook comments and Tweets may be protected under federal labor law if the comments relate to their employer, managers, working conditions, and more. But before you “unsubscribe” from the NLRB’ channel (which you can’t really do anyway), it is important to know that employers are not completely without recourse when a disruptive employee criticizes the company’s products or tries to deflect customers away from the business. However, to avoid an NLRB investigation, employers must act with caution when they regulate employees’ social media use and take care to avoid trampling on employees’ federal labor rights.

The Federal Trade Commission. The Federal Trade Commission (FTC) regulates deceptive advertising and unfair business practices. According to FTC guidelines, if there is a “material” connection between an individual who endorses a company or its products and the company itself, the connection must be prominently mentioned in the statement or endorsement. Recently, the FTC updated its Endorsement and Testimonial Guidelines to address how social media can be used to promote a company or its products or services. Of course, employees and company spokespersons clearly have a material connection with the company—they are paid. However, disclosure requirements for endorsements may apply in a broad range of scenarios. For example, disclosure requirements may apply when a blogger who is given free products to sample reviews the product favorably or a customer whose name is entered into a sweepstakes posts a glowing endorsement of a company’s services on Facebook. Therefore, companies that fail to make the required disclosures in connection with endorsements for their products or services may face an FTC investigation. While this articles highlights some concerns, there are many more legal implications in connection with social media in the workplace, including loss of employee productivity, wage and hour implications, just to name a few. Implications For Employers: Social media in the workplace is becoming increasingly common.

Bottomline: Employers are eager to embrace social media as a marketing, recruiting, and business tool. Further, more and more employees are using their work computers or mobile devices to Tweet or update their Facebook profiles while at work. But whether employers recruit candidates via LinkedIn, use Facebook to advertise, or boost company morale with Instagram Fridays, they need to remember that opportunities for greater connection and communication can also lead to lawsuits and liability.