August 2015

Social Media In The Workplace

In this podcast we are joined by Jennifer Curry, an MCN Podcast 130x130 Brownattorney with Ober|Kaler’s employment and labor group. Jennifer is here to discuss issues facing employers today with regard to employee’s uses of social media both during and outside of work. She will discuss the ways employers must adapt to employees’ use of social media in the workplace, pitfalls to avoid, and steps employers must take to manage employees in the 21st Century.

Why is this issue important?

  • There are two important reasons:
    • First, employees are using social media more now than ever before, including while at work.
    • Second, there are literally hundreds of federal and state laws that could affect the use of social media in the workplace. The one getting the most attention right now is the National Labor Relations Act, followed by the Fair Credit Reporting Act, and the anti-discrimination statutes such as Title VII and the ADA

What impact does the Fair Credit Reporting Act have on employers?

  • Cities, counties and states throughout the country have been enacting “ban-the-box” legislation, which prohibits employers from asking job applicants about their conviction history on an application.
  • The Fair Credit Reporting Act could be considered the federal counterpart to those laws, to a degree. So even if you don’t operate in one of the “ban-the-box” jurisdictions, or if you do but have moved beyond the application stage with a particular job applicant, the FCRA may come into play.
  • Many background checks and third-party investigations now include social media searches.
  • The FCRA requires employers to obtain a job applicant’s or current employee’s consent before an employer hires a third party to run a background check.
  • An employer violates the FCRA if it performs these searches without first obtaining proper consent, and is subject to civil penalties.

Can you explain what anti-discrimination laws are to our listeners?

  • Every state, and many cities, counties, and municipalities, have laws on the books banning various forms of discrimination in the workplace. Every one of those laws is based, at least in part, on the federal anti-discrimination employment laws.
  • The laws include:
    • Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, gender, religion, national origin, etc.;
    • The Americans with Disabilities Act (“ADA”); and
    • The Family and Medical Leave Act (“FMLA”)
  • The U.S. Equal Employment Opportunity Commission (“EEOC”) is the agency that investigates and prosecutes violations of these laws.

What liabilities do employers face under Title VII, the ADA, and the FMLA regarding to social media?

  • There are two areas:
    • The EEOC very recently issued guidance warning employers against using information posted on social media sites in making hiring, discipline, or termination decisions
  • Can you give an example of how this might happen?
    • Employers might conduct their own informal background check on an employee using Google or Facebook.
    • The employer has to be extremely, extremely cautious in using that information
  • What is the second area of concern to the EECO ?
    • The EEOC has also identified ways in which employers may create an obligation to act in certain situations based on information obtained through social media

The National Labor Relations Act is the law getting the most attention regarding the use of social media in the workplace, but I thought that only applied to unions. Can you explain?

  • The NLRA has expanded its reach significantly over the last several years. One of the main ways it has done that is by reviewing employers’ social media policies and practices, in both union and non-union employers.
  • Under Section 7 employers are prohibited from enacting policies that stifle or prevent employees from engaging in “protected concerted activity.”

What is “protected concerted activity.”

  • Employees’ comments are considered protected concerted activity when they are made with or on behalf of other employees, or where they discuss or seek to induce group action by employees.
  • Employees are engaged in protected concerted activity when they are expressing a concern regarding terms and conditions of employment (including actions of supervisors) on behalf of co-workers, in concert with co-workers, or on a matter of common concern to co-workers.
  • The most common example is where employees are talking amongst themselves and complaining about their wages.
  • Many times employees are taking these discussions or complaints online, and simply because they are online and not in person does not mean that they are not protected under the NLRA.
  • This applies to both union and non-union employers.

What do you recommend employers do to protect themselves from being found in violation of the NLRA?

  • Create a social media policy spelling out what employees can and cannot do.
  • No single policy will fit every employer.
  • The main goal is be specific. Social media policies should describe social media and its uses and outline which specific activities are subject to the policy.
  • Train supervisors and managers to know what to listen for or look for when employees are making complaints.

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Download the slideshow handoutaronsonThe slides have been converted to a .pdf.

This program was recorded on July 21st 2015. The Aronson, LLC Construction Accounting team provided our speakers for this event. MCN thanks Rebecca Ballard, Michael Corcoran, Chris Vasquez, Tim Cummins, and Chavon Wilcox for their knowledge and expertise. The entire program is 1 hour 16 minutes and 43 seconds in length.

Please note: beginning at approximately 1:08:00 into the recording, Tim Cummins microphone dropped out. We have boosted the audio from another mic to try to provide the few minutes of audio at the conclusion of the program. You will notice a decrease in the audio quality and an increase in background noise as a result. We apologize for the inconvenience.

If you have further questions regarding the program, please contact one of the speakers at 301.231.6200.

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