A presentation for a Communication Law and Policy course at the University of Nebraska at Omaha in fall 2015.

1. Social Media and the
Workplace:
A LOOK AT SOCIAL MEDIA POLICIES AND FACEBOOK FIRINGS

2. Focus:
 Legal Questions
 Case Law
 Statute Law

3. Legal Questions: EEO
 Using social media to determine whether to hire or fire someone is not in
compliance with equal employment opportunity (EEO) laws.
 According to a press release by the US EEOC:
 The use of sites such as LinkedIn and Facebook can provide a valuable tool for
identifying good candidates by searching for specific qualifications…but the
improper use of information obtained from such sites may be discriminatory
since most individuals' race, gender, general age and possibly ethnicity can be
discerned from information on these sites (EEOC, 2014, Paragraph 4).

4. Legal Questions: EEO
 As Dornstein (2012) states, there is a lot of similarity between each states
social media laws because they face similar key issues, “balancing
individual rights and privacy against the rights and interests of the
company” (p. 36)

5. Legal Questions: Concerted Behavior
 The concerted nature of employee conversations was included in the
National Labor Relations Act of 1935, although social media was far from
the minds of the writers of this act.
 Sec. 7. [§ 157.] of the act states employees have the right to “engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection.

6. Legal Questions: Concerted Behavior
 Concerted behavior is “jointly arranged, planned or carried out.”
 Can be chatter in the break room or via social media.
 Employees have been fired for these conversations via social media while they
likely would not have been for the same conversations in the break room.

7. Research Questions
1. What happens when there is discrimination against a potential employee
due to social media findings?
2. What happens when employees are fired for posts made on soial media,
specifically Facebook?
3. What is being done to prevent unethical treatment of employees on
social media?

8. Social Media Discrimination
 In 2011 and 212 many companies in numerous states required applicants
to give them their social media user names and passwords.
 The Maryland Department of Corrections required applicant Robert Collins
to provide his Facebook login information.
 According to Bannister, et al. (2014) the department said this information
was required to:
 Review wall postings, email communications, photographs, and friend lists, in
order to ensure that those employed as corrections officers are not engaged in
illegal activity or affiliated with any gangs (p. 7).

9. Facebook Firings
 Triple Play Sports Bar and Grille v. NLRB (2014)
 Two employees fired for interacting with an upset Facebook status by
another former employee.

10. Facebook Firings
 Triple Play case was only the third of its kind to go to an Administrative
Law Judge.
 The court determined that, even though the discussion was on Facebook,
it was concerted activity.
 The ALJ stated that: “the specific medium in which the discussion takes
place is irrelevant to its protected nature (Neal, 2012).

11. Preventing Unethical Social Media Use
 Most states have outlawed employers from requiring social media
information in job screening processes.
 Halpern and Gerdner (2013) state that rants can be prohibited as long as
they do not engage another employee or show complaints about the
workplace conditions.
 Employers can restrict social media use while on the clock or on company
equipment, but cannot tell an employee they cannot use social media
while working for their company.

12. Conclusions
 Social media law is still new, but it is developing at a fast rate.
 Not all social media policies are created equally, but employers need to
look at their policies in depth to make sure they’re in compliance with the
law.

13. Limitations
 Social media law is still new, so there are not a lot of law reviews out there
in regards to social media in the workplace.
 Law reviews take time to write, so a case that happened recently likely
does not have a full review for it yet.

14. Future Research
 Focus on the use of social media to hire, fire or write someone up.
 Focus on the use of social media while on the clock and how it affects
workers productivity.
 Future research could find the positive and negatives of using social media
while on the clock.
 Include the use of social media as a resource for companies when
recruiting new employees.