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Stop Spying on Social Media

Since the advent of social media, employers have used it to screen candidates and employees—but is that approach worth the legal and reputational risks?
By: | May 14, 2019 • 7 min read

According to a 2011 court case, NLRB v. Pier Sixty, LLC, Hernan Perez, a server at New York-based event venue Pier Sixty, vented his frustrations with his manager in an expletive-laden Facebook post he published during a scheduled break. Ten of his colleagues saw this post, and it eventually made its way to his manager, Robert McSweeney, the target of the vehemence. Three days later, Perez deleted the post—but the damage had already been done and, following a 12-day investigation, he was fired.

At face value, this may seem like a cut-and-dry case—but it wasn’t. Pier Sixty employees were in the midst of unionizing when Perez made his post, which ended with “Vote YES for the Union!”

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Perez filed a charge with the National Labor Relations Board, contending he was fired in retaliation for “protected concerted activities.” In 2013, a judge ruled that Pier Sixty had violated the National Labor Relations Act by discharging Perez in retaliation for protected activity.

The NLRA was designed as a union law in the 1930s and ’40s, when there were few protections for workers’ rights, says Aaron Holt, an employment attorney at Cozen O’Connor.

“The NLRA protects an employee’s right to engage in protected, concerted activity,” says Holt. Protected activity is defined as two or more employees who are acting together to improve issues such as wages, hours and working conditions. Holt notes this includes “criticizing an employer, complaining about favoritism, protesting to improve work conditions, discussing compensation and bonuses, etc.”

Recently, NLRB clarified these protections extend to social-media activity, which can put employers in a tricky situation.

Apart from the legal risks of monitoring current employees, companies could find themselves in hot water by using social media to vet candidates. In CareerBuilder’s 2018 social-media-recruitment survey, 70 percent of respondents said they use social-networking sites to research job candidates, and 66 percent use search engines to look up job candidates.

“Through social media, employers may learn information regarding a candidate’s race, age, religion, disability or other protected classification,” says LaKisha M. Kinsey-Sallis, an attorney at law firm Fisher Phillips. “Having this information certainly opens the door for the argument that an employer made a decision motivated by unlawful reasons.”

In our digital world, it may be difficult to completely ignore social-media activity—there have been plenty of recent cases where someone is hired and subsequently fired when old social-media activity is surfaced. For example, movie director James Gunn was fired by Disney after old tweets surfaced that he labeled as jokes but which many found offensive. (He has since been rehired.) Then there was the woman who “flipped the bird” to President Trump’s motorcade and, after an image of the incident went viral, her company fired her.

Experts agree that employers should proceed with caution if they decide to search employees’ and candidates’ social-media activity. They not only run the risk of legal consequences, but they could also encounter reputational damage, which Brian Kropp, group vice president for Gartner’s HR practice, says can be even more painful than a lawsuit.

“A lot of evidence shows us that customers make decisions about what company to shop at based on what it’s like to work at that company,” he says. “We’ve seen a lot of companies adjust communication strategies to reflect how they treat their employees as a result—using HR as a PR mechanism.”

Social Snooping

Kropp says he’s found that many employers aren’t necessarily searching social media to discover if someone was partying with friends on the weekend—but rather what kind of behavior they could potentially be bringing with them to work that would be in violation of workplace policies. For example, they’re searching social-media profiles to see if someone says disparaging things about minorities or harasses women. Or, employers may mine LinkedIn data to determine if an employee is a flight risk.

“Employers will look at whether someone is increasing the number of connections on LinkedIn or how often they’re updating their profile information,” says Kropp. “We’ve also seen companies take a similar approach to monitoring work emails and internal communication channels like Slack” to determine productivity and flight risks. Sixteen percent of employers track employee calendars to check productivity, Kropp says, and 6 percent monitor text in email, which can help uncover an employee’s intent to leave the company, their performance and overall job satisfaction.

When it comes to the legality of such monitoring, Holt says, a big touchstone is consistency—if you’re inconsistent about any behavior, including whose social-media activity is monitored, it could be seen as discrimination.

“How are you choosing who gets a social-media screen and who doesn’t?” he asks. “If you don’t treat them all consistently, then you’re subjecting applicants and employees to different terms and conditions of employment.”

Another issue is inaction based on monitoring. For example, if an employer is scanning social-media activity and discovers that an employee addressed being sexually harassed at work, does the employer have a responsibility to do something about it?

Kropp says that, while the laws are unclear, if an employer is tracking social media and employees discover this—and nothing was done about the sexual-harassment revelation—the employer may be liable for creating a hostile work environment.

“One argument is that, if you see something, you have to report it,” he says. “But some lawyers say the risk of not acting when you find something is so much greater than if you just didn’t monitor social media at all.”

When it comes to candidate vetting, Kinsey-Sallis says, proponents of social-media monitoring suggest using a third-party vendor or someone not involved in hiring decisions to conduct these searches. She says a better approach, however, is to have a solid hiring and onboarding process that you trust to bring forth the best candidates.

“If your business, because of the industry or type of work performed, is one that believes undertaking the [social-media] search is worth the risk,” she says, “it’s advisable to develop parameters to be applied to such searches and apply those consistently.”

Risky Business

Even though the experts recommend against actively searching candidate and employee social-media activity, many companies are doing it—and there will be situations that require immediate action, for which they should be ready. Kinsey-Sallis cites threats of harm, harassment or a clear violation of company policy.

Holt tells clients to equate social-media activity with in-person interactions.

“If you would discipline someone for the same face-to-face interaction, even though it happened online after work hours, don’t treat the situations differently,” he says.

Employers have a responsibility, Kropp adds, to clearly communicate company values to employees.

“You can say you care about diversity or integrity but, the moment those are tested and you don’t stand up for those values, everything falls apart,” he says.

Instead of making the conversation just about values, it should also center on the decisions the employer will make if and when those values are tested: Robust social-media policies should outline unacceptable behavior and consequences for said behavior.

Kinsey-Sallis says employers should note such policies aren’t intended to interfere with employee rights under the NLRA.

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“A good policy is specific and defines exactly what is covered under the policy,” she says. “The policy should be widely disseminated and should be followed by training on it.”

In the event that social-media activity breaches the policy, Holt recommends clients obtain a copy of the problematic post, as evidence can be erased instantaneously. They must also weigh who wrote the message (managers are held to higher standards than employees, for instance) and its context.

Holt says he uses the CAR principle: consistent, appropriate and reliable documentation—because subjective interpretations are not objective conclusions.

“When social media comes into play, I have to ask, ‘What are you looking for that’s relevant to the job?’ ” he says. “Typically, the answer is nothing, which means employers shouldn’t be looking at all.”

Danielle Westermann King is a former staff writer for HRE.

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