Social Media & Employment Law - TAPS 2012

1. Be My riend?
Social Media Situations & HR
Andy Schnitzel
Trial Attorney
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EEOC – NYDO
Baltimore TAPS 2012

2. Agenda
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1. Social media stats
S i l di t t
2. Law 101
3. Hypothetical 1: Social Media Background Check
H th ti l 1 S i l M di B k d Ch k
4. The NLRB Weighs In
5. Maryland’s S.B. 433
M l d’ S B 433
6. Hypothetical 2: Social Media Harassment
7. Hypothetical 3: Social Media Termination
H th ti l 3 S i l M di T i ti

3. What is Social Media?
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4.  Latest data
 901 million monthly active users
 526 million daily active users
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5. Employers Use Social Media to
Evaluate Candidates
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 One 2012 survey found:
 91% of employers perform social networking
screens of job applicants
 69% have rejected an applicant because of
69% have rejected an applicant because of
information found on a social media site
 68% have hired someone based on something
68% have hired someone based on something
they have found on social media

7. Legal Overview
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 Many laws apply to an employer’s use of
social media.
 EEO Laws
 National Labor Relations Act
 Fair Credit Reporting Act
 Stored Communications Act
 State laws that restrict access to social
media sites (Maryland’s S.B. 433)

8. Anti‐discrimination Laws
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 Disparate impact
 Primarily an issue in a hiring context
 Possible cases raising disparate impact
concerns:
 Employer only considers applicants with a
Facebook profile
 Employer only considers applicants with certain
Employer only considers applicants with certain
information on social networking profiles

9. Anti‐discrimination Laws
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 Individual claims more likely
 Common Situations
 Failure to hire, promote
 Harassment
 Termination
 Examples:
 School bus driver fired after posting that she is a
Wiccan on her profile
 Probation officer being harassed on a blog
Probation officer being harassed on a blog
because of his disability

10. Hypothetical 1 – Background Check
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 A fictitious restaurant and bar, “The Saloon,”
was searching for a new bartender.
 It had narrowed the field down to two
candidates, Jane Smith and John Doe, both with
extensive bartending experience.
extensive bartending experience
 The interviews with both had gone well.
 The hiring manager was not sure which
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candidate to choose, so she decided to Google
both candidates to see if anything she found
both candidates to see if anything she found
online would help her decide.

11. Hypothetical 1 – Background Check
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 Is it unlawful for the hiring manager to
the candidates?

12. Hypothetical 1 – Background Check
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 Not unlawful to Google applicants!
 Same rule applies to PUBLIC Facebook pages.
 However:
 Ensure that you’re not subjecting one subset
of applicants to a more thorough screening
than others based on a protected status.
 (Disparate Treatment)

13. Hypothetical 1 – Background Check
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 However: Do you want to know?
 Internet searches will reveal:
 Age Smoker
 Race/National Origin Religion
 Gender Political views
 Sexual Orientation Educational History
 Marital Status
M it l St t Party Animal
P t A i l
 Genetic Health Information Disability

14. Hypothetical 1, Continued
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 AND SO …
 The Hiring Manager Googled Jane Smith and found her blog.
Reading the blog, the Hiring Manager discovered that Jane
Reading the blog the Hiring Manager discovered that Jane
Smith was five months pregnant and had been fired a month
ago by her previous employer.
 The Hiring Manager selects John Doe.
 Q: Has The Saloon violated the Pregnancy Discrimination Act?

15. Answer
 The rejection of Smith’s application at this
stage suggests a discriminatory motive.
 An employer cannot refuse to hire a pregnant
woman because of her pregnancy, because of
oman beca se of her pregnanc beca se of
a pregnancy‐related condition, or because of
the prejudices of co workers, clients, or
the prejudices of co‐workers clients or
customers.

16. Facts Changed
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 BUT WHAT IF …
 The Hiring Manager looks at Jane Smith’s publically‐
accessible Facebook page, and sees a picture of
accessible Facebook page and sees a picture of
Smith and her sister before a Race for the Cure.
 They are wearing pink t‐shirts, with the logo,
“Racing in memory of Mom and for our dear sister
Mary.” The post under the picture talk about
preventative steps that Smith and her sister are
preventative steps that Smith and her sister are
taking in light of the family history of breast cancer.
 Q: What law does this implicate?

17. Answer
 The Genetic Information Nondiscrimination Act.
 GINA makes the acquisition of genetic
information unlawful and genetic information
i f ti l f l d ti i f ti
includes family medical history.
 There is an e ception for inadvertent acquisition
an exception for inadvertent acquisition
 When the Employer “inadvertently learns genetic
information from a social media platform which he or
information from a social media platform which he or
she was given permission to access by the creator of
the profile at issue.”
 29 C.F.R. § 1635.8
§

18. Let’s Change the Facts
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 The Hiring Manager decides to hire Jane Smith.
The Hiring Manager decides to hire Jane Smith
 Occasionally, this manager monitors his employees’
Facebook accounts.
 On Smith’s publically‐accessible Facebook page, the
manager finds recent posts where Smith is critiquing a
coworker’s job performance. The manager decides to fire
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Smith for publicly airing the company’s “dirty laundry.”
 Q: Has the Hiring Manager violated any of the EEOC’s laws?
 Q: Are any other laws implicated?
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19. Answers
 Section 7 of the NLRA
Section 7 of the NLRA
 Section 7 protects an employee’s right to self‐
organize or assist in labor organizations, and to
assist in other concerted activities for the
purposes of collective bargaining or other
mutual aid or protection.
mutual aid or protection
 In the social media context, Section 7 has been
In the social media context, Section 7 has been
found to protect an employee’s right to post
comments on social media sites related to
working conditions and wages, or to engage in
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“other concerted activity.”

20. More on NLRA Section 7
 Central question: whether activity was
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“protected and concerted”
 Broadly Construed
 Protected Activity =
 Actions for mutual aid and protection
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 General Rule ‐ statements regarding working conditions are protected
 Concerted Activity =
C t d A ti it
 Activity engaged in, with, or on the authority of other employees and
not solely by and on behalf of the employee himself.

21.  NLRB is at the forefront of evaluating employer’s
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social media policies and issuing guidance.
1.
1 August 18, 2011
August 18 2011
2. January 24, 2012
3. May 30, 2012 Analyzing Wal Mart s Policy
May 30, 2012 – Analyzing Wal‐Mart’s Policy
 All three reports can be found on the web:
http://www.nlrb.gov/news/acting‐general counsel‐
releases‐report‐employer‐social‐media‐policies

22.  Enacts Country s First Social Media Password Law
Enacts Country’s First Social Media Password Law
 Gov. O’Malley signed S.B. 433 on May 2, 2012.
 Law takes effect October 2012.
 This law prohibits an employer from :
 Requesting or requiring an applicant or employee to disclose the
Requesting or requiring an applicant or employee to disclose the
username or password (or other means) to access a personal
account through computer or electronic device.
 This law also prohibits an employer from:
This law also prohibits an employer from:
 Terminating, disciplining, or penalizing an employee (or refusing
to hire an applicant) based on the refusal to disclose username
or password information.
or password information

23. Hypothetical 2 – Social Media Harassment

24. Hypothetical 2: Social Media Harassment
 Ann Jones is a pilot at a major airline.
Ann Jones is a pilot at a major airline
The Airline schedules the job assignments through a website.
Employees must use this provider to check their job
assignments. The employees can also pay a small fee to
participate in an employee‐only message board. A large number
of pilots participate in the message board.
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Jones believes that she is being discriminated in job
assignments because of her sex, and files suit in court.
Because of the lawsuit, co‐workers posts abusive comments
about her, including calling her a “Feminazi.”
 Q: Airline says that it can’t do anything about these
Q: Airline says that it can t do anything about these
comments, because it isn’t happening on its worksite. Is that a
defense?

25. Answer
 Not a defense.
 Facts are borrowed from Blakely v. Continental Airlines, 751
A.2d 538 (N.J. 2000)
 The court concluded that, in this case, the message board
was a cyber equivalent of a cork board.
was a cyber equivalent of a cork board
 “So what’s the difference? What’s the critical difference now we've
taken it off this wood?”
 In Blakely, the employer provided the site and it knew about
the offensive postings. It had the same obligation to
respond to the offensive postings on a cyber bulletin board
as it did to a cork board message board in its work place.

26. Let’s Change the Facts
L t’ Ch th F t
 THIS TIME …
 The message board is not employer‐
sponsored; It i a public f
d is bli forum f pilots.
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 But the forum is very popular among pilots
and s per isors of the Airline post there
supervisors there.
 Q: Is h
Q I the employer i l d f
l insulated from li bili
liability
because the harassment is occurring on a
public website?

27. Answer
 Not necessarily.
Not necessarily
 Questions to ask are:
 (1) is the employer responsible for the website;
 (2) does the employer know about the website;
 (3) can the employer control the content of the website;
 (4) how connected is the employer’s worksite/business
and the website; and
and the website; and
 (5) can the employer restrict the postings on the website.
 Analogize the situation to another forum.
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A company sponsored picnic. A bar. A bulletin
board. A restroom.

28. Hypothetical 3 –
Social Media Discipline/Termination
 Robert, who is African‐American, works at a local fast
food restaurant.
He believes it was discriminatory when a white co‐
worker with less experience was promoted over three
more qualified African‐American employees.
Robert is also unhappy that his employer doesn’t
provide paid sick days. He contends that the lack of
health care results in workers who are sick coming in
health care results in workers who are sick coming in
when they would be better off at home.

29. Facts, Continued
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 So Robert starts a website devoted to complaining
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about his employer.
On the website, he publishes his feelings regarding
what he believes is the employer’s race‐based
promotion decisions. He also posts two identical
pictures of his restaurant’s food. One he captions,
i t f hi t t’ f d O h ti
“Food made by a healthy employee.” The second, he
captions, Food made by a sick employee.
captions “Food made by a sick employee ”
He asks his coworkers to join him in battling their
employer.
Q: Has Robert engaged in protected activity?

30. Answer
 Yes, he probably has engaged in protected activity
under Title VII because he is opposing employment
practices that he reasonably believes are unlawful
practices that he reasonably believes are unlawful
(failure to promote because of race).
 Yes, he is engaging in protected and concerted
activity under Section 7 of the NLRA.
 Wage discussion = protected activity
 Seeking others to join him = concerted activity

31. 31

32. The result under the NLRA
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“Judge
g Rules Jimmy John's Must Re‐Hire Workers Fired
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for Sick Leave Complaints”
 A National Labor Relations Board administrative law judge has ruled
six former Minneapolis Jimmy John's sandwich shop employees must be
re‐hired and paid back wages.
The workers in question said if they called in sick and couldn't find
couldn t
replacements for their shifts they risked being fired. So, they started
warning Jimmy John's customers that they could be eating
sandwiches made by under‐the‐weather sandwich makers
under the weather makers.
And THAT ‐‐ not a cold or the flu ‐‐ ultimately led to their firings.”
‐ KSTP
KSTP.com (ABC) Mi
(ABC), Minneapolis
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33. Thank You
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