Social Media & Employment Law
The advent of social media has changed the landscape of how people communicate, share and connect with others online, through applications such as Facebook, Twitter, LinkedIn, Instagram, and Snapchat, among others. As social media has become the conduit by which people share thoughts, comments and videos online, employers have begun using the same tools to recruit potential hires, convey their brands, retain employees and increase visibility in the marketplace.
But mixing personal and professional communications on a social media platform can lead to real legal liability. One of the appeals of social media is speed: as fast as you type, your remarks can be posted for public viewing. But, as we all know, speed is a trap. Careless or emotional remarks, posted by an employee or supervisor, can be held against the employer.
The courts are grappling with this issue.
For example, in Roberts v. IBM, 733 F.3d 1306 (10th Cir. 2013), a terminated employee relied upon multiple instant messages between human resources professionals regarding Roberts' “shelf life” to support his claim of age discrimination. The Tenth Circuit found that the messages were not direct evidence of age discrimination.
However in Espinoza v. County of Orange, 2012 WL 420149 (Cal. App. 4 Dist. 2012), the plaintiff sued Orange County under California law for disability-based harassment and failure to prevent harassment, based on employees' online activities. The County conducted a cursory investigation eight weeks after the comments were posted online and failed to interview the plaintiff or the alleged bloggers. The court upheld a jury verdict awarding the plaintiff damages, lost earnings and damages for mental distress.
Until the law is clearer, what can employers do?
- Create a clear social media policy, in writing.
- Consider how employees, managers and supervisors particularly, treat requests for connecting via social media.
- Apply the same employment law concepts, i.e. discrimination, harassment, or retaliation, to the social media context.
- Investigate allegations thoroughly and engage in the interactive process just as you would handle a traditional complaint.
- Align your social media policy with your information technology policy, code of conduct, and confidentiality policies.
- Do not request usernames and passwords from employees or try to gain access to non-public or password protected social media.
- Finally, train employees, managers, supervisors and human resources on the appropriate use of social media in the employment context.