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Social Media for Employers: Staying Legal & Protected

Posted by Jamison Mark on Aug 14, 2018 3:34:00 PM

social mediaSocial media is big business these days. Successful employers use online platforms for a variety of uses, like viral marketing campaigns, direct ads, recruitment efforts, screening potential candidates for employment, and communicating with existing employees. However, this increased connectivity comes with increased risk. As technology continues to evolve, the laws around it do, too.


Use Caution with Targeted Recruiting

One advantage of social media is that it makes it easy to push your content to a targeted demographic, e.g., to show ads for maternity clothes to young women of childbearing age but not to users over 55. If you’re using social media to advertise careers with your organization, however, this targeted dissemination may run afoul of anti-discrimination laws. Federal, state, and local anti-discrimination laws like the Age Discrimination in Employment Act of 1967 (ADEA) and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination in hiring based on a prospective employee’s membership in a protected class. Some social media platforms’ algorithms may automatically distribute your content in an illegally discriminatory manner, so it’s important to take steps to affirmatively control the audience for your recruitment messages.


Learning Protected Information

According to a recent survey, 70 percent of employers use social media to screen candidates before hiring. While this can be beneficial and benign in many cases—affirming that a candidate’s educational and professional background is accurate, for example—it can also be a virtual minefield. Individuals’ social media platforms are often littered with information that is impermissible for a potential employer to take into account in the hiring process, like indications of their religious beliefs or sexual orientation. A safer way to use this valuable source of information without potentially running afoul of the law is to use an outside, third-party background check service that comports with all federal and state credit and background check laws to screen potential new hires.

If it’s impossible or impractical to use an outside service, a company’s human resources department should perform any social media screening and should not share any protected information with the individuals directly involved in the hiring process. Creating a list of social media sites that will be searched for each prospective employee, using the list to uniformly screen all prospective employees, and keeping thorough documentation of search results for each candidate can help reduce your risk of potential issues.


Passwords and Connections

Many states, including New Jersey, have passed laws prohibiting employers from requesting employees’ or potential employees’ passwords and/or username information or otherwise demanding access to the “private” portions of personal social media accounts. Case law and guidance from multiple jurisdictions also caution against sending “friend” or connection requests to potential employees before hiring and also against connecting with their friends or connections. Avoiding this can help reduce the chances of claims that the employer was attempting to gain access to otherwise private information.


Employee Social Media Content Protections

New Jersey is an “employment at will” state, which means that employees may quit their jobs at any time, with or without notice, and private employers are free to terminate their workers for any non-prohibited reason without notice, warning, cause, or severance. Because of this, it’s not against the law for a private employer to terminate an existing employee or refuse to hire a new employee for what they find on publicly available social media platforms so long as that information doesn’t relate to a legally protected characteristic (such as race or age). For example, an employer who learns you love heavy metal music and cats could decide you’re not a good fit for their dog-loving, reggae-listening company.

However, existing employees are protected by the National Labor Relations Act (NLRA) if they use social media to discuss their “terms and conditions of employment,” including wages, hours, and working conditions. The law protects the rights of employees to discuss, organize, and take action to address conditions at work, including certain work-related conversations conducted on social media sites like Facebook and Twitter.[1] The protection is relatively narrow; ordinary “gripes” or complaints are not protected without some relationship to “concerted activity” among workers. Complaining about your boss, harassing, mocking, or bullying other employees, or engaging in arguments with co-workers on your social media platforms would probably not be NLRA-protected speech.


Questions About Employment Discrimination?

Whether you’re an employer, employee, or a job seeker, it’s important that you know your rights when it comes to social media. Because these laws are constantly changing, if you have any questions or concerns, you should consult with a qualified employment attorney. The lawyers at the Mark Law Firm have experience with anti-discrimination cases and can help you. Contact us today.


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[1]The NLRA and Social Media.” National Labor Relations Board. Accessed 16 Feb 2018.

Topics: Employment Law

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