What’s an Employer to do with an Employee’s Anti-social Media?
August 28, 2012
Joseph “Sid” Kistler
What’s an Employer to do
with an Employee’s Anti-social Media?
Image from http://www.iconshock.com/social-icons/
Rosa Golijan, Feet-in-lettuce photo hits Internet, gets Burger King employees fired, NBCNews.com, July 18, 2012.
How Can the Employer Respond?
Presenter
Presentation Notes
This photo initially appeared on 4Chan, a website that allows users to post images anonymously. When it was posted, the caption read “This is the lettuce you eat at Burger King”. Moments after the photo was posted, 4Chan users used the photo’s geo-location tags to identify the particular Burger King where the photo was taken. (Mayfield Heights, Ohio). 4Chan users began calling the particular Burger King & forwarded the picture to local news outlets. Photo was even posted by local news on their Facebook page Franchise terminated the three employees involved. Question: Did franchise act properly in terminating the employees? What could the franchise do to have prevented this situation?
Most Employees (Incorrectly) Assume Social Media is Private
Litigation Services
1.Using Social Media to Pre-screen Applicants – Reasons to pre-screen – Cautions with pre-screening
2.Managing Social Media after Employment – Times when an employer is permitted to access
an employee’s social media – Options available to an employer when employees
misuse social media
Overview
Social Media Background
Checks…
• “an employer may be liable for the negligent or tortious conduct of its employees if the employer breaches a duty to use due care in selecting and retaining only competent and safe employees.” 14 Rodolfo A. Camacho, How to Avoid Negligent Hiring Litigation, 14 WHITTIER L. REV. 787, 789 (1993); See also Section 213 of the Restatement Second of Agency
• CA, OR, ID, NM, UT, CO all have adopted the doctrine of negligent hiring.
Id. at 791.
Pre-Screening with Social Media - The Doctrine of Negligent Hiring
Presenter
Presentation Notes
Doctrine of Negligence: Pre-screening applicants through social media applies to the doctrine of negligent hiring, in that it may be used to define an employer’s constructive knowledge of whether or not the employee is unfit for a particular position arguably, if a reasonable search of a candidate’s social media would have alerted the employer of the applicant’s dangerous propensities, then the employer has constructive knowledge sufficient to establish a claim for negligent hiring Given the potential liability for poor hiring decisions, employers then are justified and motivated to use social media to conduct background checks on prospective employees
• Generally, employers do not need permission to conduct a lawful social media background check. Carolyn Elefant, The “Power” of Social Media: Legal Issues & Best Practices for Utilities Engaging Social Media, 32 ENERGY L.J., no. 1, 2011at 15-16.c
• BUT…
— Social media background checks can be a “backdoor to illegal discrimination” Patricia Sanchez Abril et al., 49 AM. BUS. L.J. 63, 87 (2012).
Image from http://www.colourbox.com/image/hand-discriminating-black-goldfish-image-3912935
Pre-screening with Social Media - Discrimination Concerns
Presenter
Presentation Notes
- In general, employers can use social media to pre-screen applicants. However, employers ought to be careful not to fall prey to claims of discrimination.
• Title VII disallows discrimination “with respect to . . . compensation, terms, conditions, or privileges of employment because of [an]
individual’s race, color, religion, sex or national origin.”
Gaskell v. University of KY, 2010 U.S. Dist LEXIS 124572 (E.D. Ky. 2010)
Title VII of the Civil Rights Act -Applicable to Social Media
Presenter
Presentation Notes
Using social media to pre-screen applicants presents issues of potential Title VII violations since “personal information presented out of context or inaccurately” may cause employers to judge the applicant inaccurately, without allowing the applicant a chance for rebuttal. Further, employers conducting social media background checks can more discreetly weed out applicants in violation of Title VII, since as social media often depicts an applicant’s race, color, religion, sex or national origin Gaskell: UK decided to design & construct an atronomical observatory UK met with Gaskell (then employed at University Nebraska-Lincoln) - at UNL he had successfully raised funds, planned, developed and implemented their student observatory. Gaskell later applied for the advertised founding director position at UK Uncontested that Gaskell was a leading candidate Per Gaskell, “fairly standard phone interview” was conducted. After phone interviews, Gaskell was ranked #1 out of 7 applicants by the hiring committee. During the hiring process, one of the search committee members conducted an internet search, finding Gaskell’s blog containing the article “Modern Astronomy, the Bible, and Creation”. The article was distributed to the hiring committee. Ultimately, in the end, the Search Committee recommended another candidate for the position. Another candidate was offered the job.
• Employers must be able to point to a legitimate, nondiscriminatory reason for the hiring decision, PLUS have supporting documentation. Renee M. Jackson, Social Media Permeate the Employment Life Cycle, 32 NAT. L.J., no. 18, 2010 at 2.
Image from http://www.theintegrationengineer.com/10-tips-on-making-effective-documentation/
To avoid Title VII Discrimination Claims…
• Best practices: –Have neutral party conduct
social media search –Give hiring committee
search results, having filtered out any protected class information
–Have a uniform search method/policy
Renee M. Jackson, Social Media Permeate the Employment Life Cycle, 32 NAT. L.J., no. 18, 2010 at 2.
To avoid Title VII Discrimination Claims…
Image from http://www.psdgraphics.com/3d/like-and-dislike-symbols-3d-thumbs-up-and-down/
• Nev. Rev. Stat. § 613.333 states: “It is an unlawful employment practice for an employer
to: (a) Fail or refuse to hire a prospective employee; or (b) Discharge or otherwise discriminate against any
employee concerning the employee's compensation, terms, conditions or privileges of employment, because the employee engages in the lawful use in this state of any product outside the premises of the employer during the employee's nonworking hours, if that use does not adversely affect the employee's ability to perform his or her job or the safety of other employees.
States’ Lifestyle Statutes
Presenter
Presentation Notes
-Approximately 29 states have adopted lifestyle statues, which vary in scope, but generally restrict employers from considering legal off-duty activities such as drinking, smoking, overeating, or personal relations, in hiring and termination decisions if those off-duty activities would have no employment-related consequeces. (ELJ, 15-16; See also 25 Hofstra Lab. & Emp. L.J. 395 at 411) -EX: Under such statutes, a company would likely not be allowed to reject a top candidate for a busy management position simply because they are concerned after seeing that his Facebook profile shows he has ten children. (ELJ, 15-16).
Accessing Social Media Once Employed
Employee’s Reasonable Expectation of Privacy
• Legally, a reasonable expectation of privacy is formed in 2 ways: – Subjective expectation – Objective expectation,
which society accepts and legitimizes
Katz v. United States, 389 U.S. 347, 360-3 (1967).
Employers CANNOT access social media in a way that violates employee’s reasonable expectations of privacy.
• Supreme Court held:
–“operational realities of the workplace” can limit an employee’s reasonable expectation of privacy. O’Connor v. Ortega, 480 U.S. 709, 718 (1987).
–“what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection” Id.
Limitations on the Reasonable Expectation of Privacy
Presenter
Presentation Notes
In O’Connor the Court found no violation of privacy when the state hospital searched an employee’s office drawers as part of an inquiry into harassment violations. O’Connor, 480 U.S. at 717. The Court noted that as offices are hardly “private enclaves”, such “operational realities of the workplace” argue against the employee having a reasonable expectation of privacy. Id. The Court further restated that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Id. at 718 (citing Katz, 389 U.S. 347, 351 (1967). But the Court also issued a caveat, that even when there is no reasonable expectation of privacy, still only “investigations of work-related misconduct” and searches reasonable in light of the circumstances are permissible. Id. at 722-726.
Image from http://bowtielaw.wordpress.com/2010/11/04/quashing-subpoenas-with-the-stored-communication-act/
Legislative Limitations on Reasonable Expectation of Privacy
— Defines when an employee’s electronic data is protected
• Title I, the Wiretap Act • Title II, the Stored Communications Act
— Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420, at *1 (D.N.J. 2009) — Exception: Discovery
Presenter
Presentation Notes
-The legislature has attempted to define the boundaries of an employee’s reasonable expectation of privacy with the EPCA, which is intended to protect the transmission and storage of electronic data. Title I of the ECPA, the Wiretap Act, prohibits the interception, use or disclosure of any electronic communication while in transit exceptions to the Wiretap Act still allow employers leeway in monitoring employee’s social media Wiretap Act does not apply to communications made through an electronic communication system that is accessible to the public Thus, an employer is not prohibited from viewing an employee’s digital information that she makes available to the public under the Wiretap Act, organizations providing employees with either mobile telecommunication service or internet access for work-related purposes may access all employee communications transmitted thereby. Thus, the Wiretap Act exceptions still allows employers an ability to monitor employee’s social media. Title II, the Stored Communications Act (“SCA”), potentially offers more protection for employees in that it forbids the intentional and unauthorized access of stored communications Taking the SCA into consideration, an employer may access an employee’s social media and act upon it, if the information is available to the public at large, or if offered voluntarily Employers may not however, access an employee’s social media through coercion Pietrylo - (while the jury found that the employee had no reasonable expectation of privacy in his MySpace page, the court also ruled that the employer violated the SCA by obtaining access to that page by coercion, thereby awarding the employee punitive and compensatory damages) Exception: Discovery – employers have been successful in having the court grant them access through discovery to employee’s social media (ie. employees must give up passwords)
• Social Media Policies
– “most employee arguments are foiled in one step by such instruments.” See Abril et al., supra at 72
– Bourke v. Nissan Motor Corp., No. B068705 (Cal. Ct. App. 1993) (unreported decision)
Illustration from http://socialwebb.se/foretagande/16-punkter-i-en-social-media-policy-enligt-advokaten/.
How Employers Can Limit Reasonable Expectation of Privacy
Presenter
Presentation Notes
-Bourke – in California, an employee brought claims of invasion of privacy against her employer when the company training on e-mail brought to light her non-business related, sexually explicit e-mails. The employee however, had signed the company’s Computer Registration Form, which stated “It is company policy that employees and contractors restrict their use of company-owned computer hardware and software to company business.” Because the employee had signed this agreement, the California Court of Appeals agreed with the trial court that the employee did not have any reasonable expectation of privacy
• Contain specific detail as to the type of communication, the nature of the online forum, and the location of the message sender
• Inform employees about the type of information they are prohibited from transmitting
• Articulate and justify the policies in terms of the organization’s purpose and mission See Abril et al., supra at 113-115
Social Media Policies Should…
Illustration by Erin Carpenter, http://blogs.jccc.edu/campusledger/2011/10/06/beware-the-web-new-social-media-policy-in-the-works/#.UCl4yaGPWGM
Managing Employees’ Social Media Indiscretions
• In Nevada, at-will employment is the presumption; –Employer can
“discharge an employee for any reason, subject to limited public policy exceptions.” Coast Hotels & Casinos v. Nev. State Labor Comm’n, 34 P.3d 546, 551 (Nev. 2001)
At-Will Employment
Presenter
Presentation Notes
Employers in Nevada have greater leeway in discharging employees who misuse social media both on and off-duty, because Nevada is an at-will employment state Terminations for social media misuse has not been found to be a violation of public policy. Goldstein v. PFPC, Inc. 2004 WL 389107, at *1-3 (Mass. Super. 2004). In Goldstein, an employee was fired for sending an obscene picture via e-mail, in violation of the company’s Code of Ethics and Electronic Media Policy. Id. While the employee claimed the termination violated public policy, and was therefore disallowed under the doctrine of at-will employment, the Massachusetts court was unwilling to recognize such a situation as violating public policy. Id.
Regardless of the at-will doctrine, under Nev. Rev. Stat. §613.333, an employer, upon seeing an employee’s Facebook post of alcohol use, or any other lawful product, WOULD NOT be able to terminate that employee, UNLESS the employer can show that the activity “adversely affects the employee’s ability to perform his job or the safety of other employees”
• Lifestyle Statutes - Nev. Rev. Stat. §613.333
Limitations on At-Will
Presenter
Presentation Notes
-While employers have the ability in Nevada to terminate an employee at-will, they are still subject to the limitations found in the Nev. Rev. Stat. §613.333 and N.L.R.B. concerted activities. This statute is representative of the “lifestyle statues” that approximately 29 states have adopted, which vary in scope, but generally restrict employers from considering legal off-duty activities such as drinking, smoking, overeating, or personal relations, in hiring and termination decisions if those off-duty activities would have no employment-related consequences Under Nev. Rev. Stat. §613.333 an employer, seeing an employee’s Facebook post of alcohol use or use of any other lawful product, would not be able to discharge that employee unless the employer can show that the activity “adversely affects the employee’s ability to perform his or her job or the safety of other employees.”
• NLRA, 29 U.S.C § 157
– Protects an employee’s right to “self-organization” or to “engage in . . . concerted activities.” – EX: American Medical Response of Connecticut,
Inc. V. International Brotherhood of Teamsters, Local 443, Case No. 354-CA-12576
(Oct. 27, 2010).
Limitations on At-Will Employement Doctrine
Presenter
Presentation Notes
-Another limitation on the at-will employment doctrine is the NLRA’s protection of an employee’s right to “self-organization” or to “engage in . . . concerted activities.” In American Medical Response of Connecticut, Inc. V. International Brotherhood of Teamsters, Local 443, the NLRB found that “the company blogging and Internet policy that bars employees from making disparaging remarks when discussing the company with other employees may violate the NLRA because they interfere with a protected ‘concerted activity’.
• Review your liability insurance • Don’t ‘friend’ your prospective hires or ask for access to their private information • Give your prospective hires a chance to respond
to any concerns that arise from a social media review
• Specifically define what social media use will be acceptable in a marketing or networking context
• Establish an oversight policy that’s understood by company employees
See Workforce, Workforce.com, "Legal Experts Stress That Social Media Background Checks Create Risks,” http://www.workforce.com/article/20110505/NEWS01/305059993; Sharon Zaleski, IntelliCorp Blog, “Social Media Background Checks — Same As Pre-Employment Screening?”, http://www.intellicorp.net/marketing/social-media-background-checks.aspx.
Additional Considerations
Presenter
Presentation Notes
Companies should review of their liability insurance programs to make sure their program covers suits by employees or job prospects in connection with the use of social media. Usually, a company will not need to acquire a special coverage plan to address social media issues, since suits stemming from social media resemble other claims for invasion or privacy or questions of free speech. While access to a job applicant’s facebook or other social media page may grant the viewer additional information, this is problematic. Most of the information that a company will need can be found online in the public domain and any additional information that could be garnered from access to private information is likely to be slight. Perhaps most significantly, seeking access to private information may lead to claims of harassment or invasion of privacy. Addressing the prospective hire about their actions online can clarify any cases of mistaken identity (i.e.: there may be hundreds of ‘John Smiths” online) or avoid any subjective observations that may lead to a claim for employment discrimination.
Each of these sites offers some form of social media searching that can be used by an employer. They each have different formats, methodologies, and focuses, but with a little experimentation can be easily put to use.
