In our May 4, 2016 monthly webinar, Sutton Hague attorneys Jared Hague and Joseph Macias discussed the benefits and risks presented to employers by social media and employee off-duty conduct that impacts the workplace.
Here are a few of the highlights:
Employee Political Commentary on Social Media
California and Nevada both have laws protecting employees from adverse employment action based on their participation in lawful conduct during non-working hours. An employee’s off-duty conduct is an especially improper basis for an adverse employment decision when that conduct is not only lawful, but is affirmatively protected by law. For example, in light of the current election season, employers may encounter situations where employees post on social media regarding their political views. California has a statute making it illegal for an employer to harass or retaliate against an employee based on that employee’s political affiliations.
On the other hand, we are all too familiar with the level of invective that is sometimes expressed by candidates in political campaigns. A simple reposting of a candidate’s words on one employee’s social media page may possibly be seen as inappropriate and harassing conduct by a coworker. Therefore, an employee complaint about the views expressed on a coworker’s social media account could trigger the need for a workplace investigation. In such a situation, an employer walks a fine line between protecting its employees from workplace harassment and refraining from retaliation based on its employees’ political views and affiliations.
Dealing With Job Applicant Information Obtained From Social Media Sites
Employers commonly look to social media sites during the recruiting process, either directly as a recruitment tool or as a method of vetting job applicants. However, not all information relating to job applicants that is obtained on the internet may be used in making hiring decisions. In particular, information related to a protected characteristic of that applicant (e.g., race, gender, national origin, age, religion, sexual orientation, etc.) cannot legally play a part in an employer’s employment decisions.
Therefore, employees involved in the hiring process must be well-trained in the type of information they may consider in hiring decisions, and the reasons for hiring decisions must be well-documented. Moreover, employer policies with respect to using social media in hiring decisions must be applied consistently across the board.
Maintaining Corporate Ownership of Corporate Social Media Accounts
Many employers engage in online marketing by maintaining corporate social media accounts, but these accounts are almost invariably managed by employees. If an employee who manages her employer’s social media account decides to change the password and go rogue, possibly posting damaging content or even attempting to claim the account for herself, it can cause big problems for an employer.
To prevent this from occurring, employers should have clear and consistently-enforced policies regarding employee use of social media for corporate marketing purposes. Make ownership of social media accounts clear in your policies, and do not allow employees to use personal accounts for corporate purposes. Also, stay on top of your social media account passwords, updating them often and ensuring management always knows what they are.
THE NEXT SHLC MONTHLY WEBINAR
Join us on June 1 for our next monthly webinar. We will welcome special guest Orus Dearman of Grant Thornton, LLP to discuss the ever-evolving topics of Cybersecurity and Electronic Communications Policies. Mr. Dearman is an expert on this topic and consults with companies across the United States.
Please visit https://suttonhague.com/events/ to view our entire 2016 webinar series. CDs and MP3 recordings of our webinars are available for purchase for $30! For more information you can email kaily@suttonhague.com.