By Wayne Young
Below are a few key takeaways from my social media compliance seminar that was presented at the Arkansas SHRM 2018 Conference earlier this week.
1. Take a deep breath. If an employee posts something disparaging on social media, do not make a knee-jerk reaction. Discuss it with the manager, a colleague, an attorney or another member of management to fully consider the potential legal implications of the post. Perhaps the post touches on wages, hours and working conditions such that it might be considered protected concerted activity under the National Labor Relations Act. Perhaps the post warrants further investigation into other issues of potential harassment in the workplace. Understand that employees have a protected right to discuss certain matters in a public forum.
Also take a deep breath and do not be paralyzed by the different potential legal implications of social media activity. Not all employee comments or activity are protected. A common question I get asked is “What if I learn an employee has lied about a leave of absence based on viewing their social media activity?” Employees still are responsible for lying to their employer. The fact some evidence of that misrepresentation came from social media is of no consequence. What I would advise is to fully investigate information you view on social media to make sure it is not “fake news” about the employee.
2. Get a policy. The first step is creating a compliant policy that it is not overly broad. When drafting a policy, consider compliance with other laws, such as FTC regulations, defamation issues; harassment/EEO issues; NLRA issues; confidentiality issues and trademark/copyright issues. Keep up with the shifts in the National Labor Relations Board enforcement philosophies on handbook policies.
3. Know when to use social media. Social media can be a valuable tool in evaluating candidates but keep in mind some best practices when using it. I would not recommend doing a search on a potential candidate prior to an interview. There is a lot of information that can be gathered from social media that is not appropriate to consider in hiring (age, race, gender, disability, religion). I think it is best to use social media as a way to judge to see if you have met the “true” candidate at the interview. Consider using a third party, such as another manager or member of management, to be the social media reviewer to insulate that person or persons who are making the final hiring decision. The third party can filter what information is appropriate and necessary for the decision maker to know.
The information provided above is created by Wayne Young of Friday, Eldredge & Clark, LLP. Wayne is a partner with the firm and a member of the Labor and Employment Law Practice Group. He was named the 2017 Russell Gunter Legislative Advocacy Award Recipient by the Arkansas SHRM. The award recognizes outstanding contributions of time and effort in local, state or federal legislative advocacy on behalf of the Human Resources profession.
This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our Labor and Employment Attorneys.