You have an employee who posted a negative comment about his supervisor on Facebook calling the supervisor a “scumbag.” The employee’s comment drew several supportive responses from coworkers who all agreed that the supervisor lacked a general personality skill set. Being a diligent employer, you had previously adopted a thorough social media policy that prohibits employees from making disparaging remarks about the company and other employees. As a result of the Facebook posting, you decide to terminate the employee for violating your social media policy. Is the termination legal?
National Labor Relations Board Guidance
First, some background. Recently, the National Labor Relations Board issued several determinations that have directly impacted an employer’s ability to discipline employees for their actions on the Internet, specifically on social media websites such as Facebook. In these recent decisions, the NLRB has repeatedly found employee postings on social media websites to be protected “concerted activity.” These findings are significant because the National Labor Relations Act provides certain protections for employees, whether they are unionized or not. Pursuant to the NLRA, employees cannot be terminated for engaging in “concerted activities” (e.g., 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).
According to the NLRB, employee comments made on social media websites that pertain to the terms and conditions of employment and that are not made solely by the employee on his or her own behalf constitute such protected activity. In addition to this rather broad interpretation of protected concerted activity, what is more concerning for employers is the fact that the NLRB has repeatedly determined that employer social media policies are overbroad. In this regard, the NLRB has stated that if an employer’s policy prohibits any negative or disparaging comments about the employer, its supervisors, or its employees, it will be deemed overbroad. The impact of these determinations is significant. Under this new NLRB standard, most employer social media policies are now deemed in violation of the NLRA. Consequently, if an employer disciplines or terminates an employee pursuant to such a policy, the termination will also likely be deemed a violation of the NLRA.
In light of the foregoing, the employee who had the issue with the “scumbag” supervisor was deemed to have engaged in protected concerted activity by posting his concerns about the supervisor on Facebook. Accordingly, his conduct was protected by the NLRA, his termination was deemed illegal, and the employer was ordered by the NLRB to reinstate him with back pay. This is not a pretty picture for employers.
Notwithstanding the doom and gloom caused in most employer circles by these recent NLRB developments, employers should not abandon all monitoring of employee Internet usage. To the contrary, employers should continue to monitor employees’ Internet usage, both on and off the job. In this regard, in a recent New Jersey case, an employer was deemed to be potentially liable for the actions of its employee when the employee utilized his workplace computer to post nude pictures of a minor. The employer had a monitoring policy in place, but failed to adequately follow the policy.
Additionally, employers should be wary of employees disclosing confidential or proprietary information on social media websites. In some recent cases, employees have disclosed such information without realizing they were engaging in such behavior. Without proper monitoring in place, employers would not be made aware of such unintentional disclosures.
What should an employer do in light of the recent NLRB developments? While an employer must develop a policy with regard to employee use of social media, such a policy must be narrowly tailored. In this regard, it should identify the type of media to which it is applicable and inform employees that they should be mindful of what they post on social media websites; it should inform employees that they are not prohibited from engaging in protected concerted activities. A policy should not broadly prohibit employees from posting critical or disparaging comments on social media websites. Such broad prohibitions are likely to be deemed a violation of the NLRA.
Such a policy was highlighted recently when Apple made news by terminating an employee for posting a rant on Facebook about his iPhone. Apple’s social media policy mirrored the NLRB guidelines set forth above and stated, in a pertinent part, that employees should “remember there may be consequences to what you post or publish online including discipline if you engage in conduct that Apple deems inappropriate or violates any Apple policies.” The policy further stated that employees should “be thoughtful about how you present yourself in online social networks. The lines between public and private, and personal and professional are blurred in online social networks.” Employees are further advised to “use their best judgment.” Based upon the guidance provided by the NLRB, the Apple policy appears to successfully navigate the “protected concerted activities” trap.
Other Limitations Do Exist
Despite the recent NLRB developments regarding social media use, in general, what employees do on the Internet at work is not private, especially if the employee is accessing inappropriate websites. An employee who works for a private employer has little to no privacy with regard to their workplace Internet archives. If an employer has a policy stating that it has the right to monitor an employee’s Internet usage, an employee can be justifiably terminated for accessing inappropriate sites while at work. Each employer is unique, and the employer’s policy should dictate what it considers to be “inappropriate” Internet usage.
Social Media As A Screening Tool
There are, however, other land mines employers are facing with regard to the use of social media in the workplace. More employers are utilizing online social networks to perform background checks on their potential employees. With social networks, such as Facebook, becoming the predominant avenue for individuals of all ages to display their personality, interests and even their potential abilities, employers have begun looking to these sites as a pre-interview screening process. These websites provide access to information that employers may not otherwise be privy to, and most importantly, this information is free of charge.
What is potentially more important to the employer, however, is the fact that the information obtained on these sites need not be disclosed to the prospective employees. An employer may, either on its own or through its employees, search the Internet for an applicant’s web persona prior to an interview, without being required to disclose the search or the information obtained. Such searches are generally not covered by the Fair Credit Reporting Act because the employer is not using a third party to collect the information.
Nevertheless, using the Internet to screen out applicants is potentially dangerous for employers. The information contained on these sites may appear beneficial, but it may also open the door to future litigation. In this regard, when interviewing potential applicants, there are numerous topics that are clearly off-limits. An employer cannot ask an interviewee questions regarding his or her religion (e.g., “what holidays do you observe”), nationality (e.g., “what is your native tongue”), age, race, marital or family status (e.g., “how many children do you have,” “how old are they,” or “who is responsible for child care”), or abilities based upon gender. While some of this information may be obvious (questions about gender), once a person reaches the interview stage, other information remains unknown during the interview process. By utilizing the Internet to screen applicants, however, the employer obtains information that goes above and beyond the information obtained from a resume or interview.
Dangers Of Social Media Screening
An individual’s Facebook page generally lists a person’s age, gender, hobbies, race, religion and place of birth. Moreover, these pages can contain countless statements or comments by others that provide the employer with information that would be otherwise unavailable. As a result, when an employer views these pages, it may obtain information regarding an individual’s age, heritage, religious background, ethnicity, sexual orientation, disabilities, or even their political ideals. If used improperly, this information could lead to charges of discrimination for failure to hire. Comments on an individual’s site, such as “congratulations on the baptism” or “Trump for President,” which appear innocent when posted, can be used by an employer to illegally screen out an applicant for a discriminatory reason.
While, currently, there have not been claims brought against employers for discrimination based upon Internet screening, the potential for liability is great. If such a claim is made, the employer will have to show that it made the decision not to hire an applicant based on a legitimate, non-discriminatory reason and not the individual’s protected class or inappropriate information obtained via the Internet. Such a burden may be difficult to satisfy when the employer viewed the website prior to making the decision not to hire or interview the applicant.
Notwithstanding the very real dangers of using Internet-based information as part of the pre-employment screening process, there are clearly some benefits as well. With workplace violence and discrimination lawsuits on the rise, an employer may not be doing its due diligence if it fails to utilize the Internet to screen its applicants. If an applicant’s Facebook page states that he hates all minorities, should the employer necessarily view that individual as a safe hire? Without having first obtained this information via Facebook, it is likely that the employer would not discover this side of the employee until after a costly harassment or discrimination claim is filed against it.
Recommendations Regarding Social Media Screening
So what should an employer do? Employers should avoid social media screening until after an in-person interview occurs. Waiting until after an applicant is personally interviewed protects an employer from the inference that it used inappropriate demographic data to pre-screen its applicants. Because websites such as Facebook are free and access to the sites is rarely denied, fake MySpace pages are not uncommon, nor is it unusual for comments to be posted on these sites that do not accurately reflect the applicant or his or her potential abilities. As a result, it is always advisable to speak with an applicant before making a hiring decision based upon information obtained through Internet and social media searches. Once the interview occurs, however, the employer may utilize the Internet to ensure that the applicant was truthful with his or her answers or for further screening purposes.
Employers should also have a hiring or recruiting policy that spells out the manner in which they recruit potential applicants or screen out applicants for employment. This policy should specifically set forth when and in what ways an employer will utilize the Internet to screen applicants for employment. A thorough and consistently applied policy will enable employers to side-step the numerous land mines that presently exist.
Given all of the potential land mines for employers with regard to the use of social media in the workplace, it is imperative that employers ensure that their policies are up to date and in full compliance with this rapidly evolving area of the law. Without such policies, employers are unlikely to receive a passing grade when faced with the real life “pop quiz.”
George C. Hlavac is Chair of Norris McLaughlin's Pennsylvania Labor & Employment Law Group, and Edward J. Easterly is an Associate in the group.