Hiring
and maintaining quality employees is a difficult process, in addition there is
the challenge of keeping up with the ever-changing landscape of employment
issues. The last few years employers have had to navigate through several major
adjustments, some changes are ongoing. For example, the EEOC has published new guidelines on the
use of criminal background checks. The “Ban the box” movement is rapidly spreading
through State and local governments. If you are not familiar with the term “Ban
the box”, it is the phrase used to describe the movement to have the question,
“Have you ever been convicted of a crime”, removed from employment
applications. (Have you ever been convicted of a crime? February 3, 2013) Maryland passed such a law, which took effect October 2013. In
addition to rule changes, Federal authorities are monitoring employer’s actions
for FCRA violations and National Labor Relations Act violations.
Researching social media
As
technology changes it affects the way we do business. Not only in our daily
commerce but also in the hiring process. Employees have always talked around
the water cooler and outside of work in the privacy of their cliques, outside
the earshot of company officials. With social media, employees have a broader
base to which their complaints are heard and also are more open to discovery.
Bosses are taking to the Internet to see what their employees are doing on
social media. Human resource professionals are also using social media as part
of their screening process. Hiring surveys have found that nearly 60% of
interviewed HR professionals use social media as part of the applicant’s
screening process. This is almost double the percentage from surveys conducted
in 2012. In 2013, Federal labor bodies began hearing social media related cases
and applying existing laws to the new medium for worker dissent-social media.
The
Internet has made it very easy to check on employees, but whether you are
hiring or checking on an employee you may want to resist the urge. If you are
researching job applicants and decide to do some Internet research, you may
learn details about the applicant that you don’t know from the application,
this could affect your hiring decision. If you learn something such as race,
sexual orientation, illness, or pregnancy, and use that knowledge in your
hiring decision, you may be in violation of the Civil Rights Act of 1964 and
have trouble with the EEOC.
If
you’re searching to see what employees are up to around the virtual water
cooler and learn some disparaging information you may be enticed to act. Some
employers have retaliated against employees for social media postings, which
brought the cases before the National Labor Relations Board (NLRB). As the
result, the NLRB has ruled, in most cases, for the employee.
Federal law
Title 7 of
the Civil Rights Act of 1964 prohibits employers from refusing
to hire any individual, or otherwise to discriminate against any individual,
with respect to compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin
The
National Labor Relations Act, Section 7 states, “Employees shall have the right
to self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection,
and shall also have the right to refrain from any or all such activities. Section
8(a)(1) forbids an employer “to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 7”.
When using
social media searches, employers can easily let information they learn
infiltrate the decision process. Even if they claim they haven’t used
information illegally, it would be difficult to prove otherwise.
The
NLRB ruled in 2013 that employees could use social media to…well…complain. As
you read above, the NLRA protects employees’ rights to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection. When an employee is complaining on social media about the
boss, or conditions, or hours, they have that right. Additionally, the NLRB has
ruled that employees can use
confidential company information, company logos, or photographs of company
property. The basis of the rulings are the employee’s Section 7 rights to act
in concert and share company information regarding their working conditions in
such ways as leaflets, picketing, etc. in an electronic medium.
One of the
first rulings for employees came on April 27, 2013. The NLRB, Administrative
Law judge, ruled in favor of
three employees fired as the result of postings
on Facebook about their employer and work conditions. The Board ruled
that the employees were engaging in a protected concerted activity. As a
result, the employer must offer full reinstatement to the fired employees,
make the employees whole for any loss of earnings or benefits, and remove any
mention of the firings from the employee’s records. Case 20-CA-035511, 359 NLRB
No. 96
In
our blog post, Enforcing company policy May 8, 2015, a NLRB decision is highlighted in which a company claimed violation of
obscenity rules as the reason for firing an employee for a Facebook rant.
Enacting policy
Companies
have responded to the growing phenomenon that is social media by enacting
policies that control what their employees can and/or cannot post. The NLRB has
ruled that companies cannot have policies that restrict the use of social media
by employees, nor can acts of retaliation be taken against employees as a
result of social media postings. Furthermore, employers cannot ask employees
for passwords or retaliate against employees for failure to provide passwords.
Social
media laws are also being enacted at the State level. In 2012, Maryland enacted
the country’s first such law. The User
Name and Password Privacy Protection and Exclusions law prohibits an
employer from requesting or requiring an employee or applicant to disclose
access information to their personal social media accounts.
So the
question is- what is your social media policy? Is there one in place and does
it address management’s use as well as workers? HR professionals can help draft
your policy; always have any new policy or policy changes reviewed by an
attorney.
Websites like Policy tool for Social Media can assist in drafting a policy. The site takes the user through a series of questions that results in a completed policy.
