Spokane Journal of Business

Clicking carefully in legal sphere of social media

Here are points employers might be wise to consider

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Social media and smartphones are ubiquitous creatures. So many people are poised with smartphone in hand ready to capture and share events that range from the truly mundane and uninteresting (think Facebook posts of your friends’ entrées) to the earth-shattering and epic (think recent events in the Ukraine). 

The Internet is awash with various theories as to why so many share so much and what value, if any, this constant onslaught of bits and bytes represents to senders and recipients alike. Regardless of the reasons behind this mode of communication, it is clear that social media, smartphones, and perpetual sharers are here to stay.

This techno-trio has influenced the landscape on many fronts, and has raised lots of questions, including in the domain owwwf employment.

Can an employer scour social media and online sources to investigate prospective employees? Can employees be prohibited from sharing events that transpire at the workplace? Is it OK to terminate that pesky employee who uses social media to rally fellow employees to rise up and object to workplace practices? These and other thought-provoking questions are explored and shared in this article. If you are an employer, you may want to read on!

Let’s start with hiring. While there is nothing illegal per se about viewing a job applicant’s online profile during the vetting process, there are two important caveats that employers will want to bear in mind.

First, as of last year, it is illegal in the state of Washington for an employer to ask for a prospect’s social media login credentials. It’s hard to imagine how such a request could ever be made by a potential boss without creeping out the candidate, thereby causing him or her to make a mad dash for the exit. But the unsavory practice apparently had become widespread enough that the good folks in Olympia could no longer sit idly by. The law is codified in RCW 49.44.200, and you can review it at http://apps.leg.wa.gov/rcw/default.aspx?cite=49.44.200.

Second, state and federal laws prohibit employers from making hiring decisions based on such things as an applicant’s race, age, or religion, to name just a few. If a prospective employer scours an applicant’s social media profiles, this type of information might be happened upon, inadvertently or otherwise, by an employer.

Even if the employer doesn’t consider any of this “protected” information in making the hiring decision, a disgruntled applicant certainly could claim otherwise, which could lead to claims of discrimination and all that goes with them.

On the other hand, a prospect’s social media posts can contain information that an employer is perfectly entitled to know about and rely upon in making hiring decisions. For example, tweets or posts exposing an applicant’s excessive use of alcohol, drug use, or grossly negligent conduct are certainly all up for consideration.

It’s fair to say that employers are betwixt and between when it comes to social media. One way to potentiality navigate out of this conundrum is to task someone at the company, such as an assistant human-resources director who won’t be involved in the hiring decision, to review an applicant’s social media posts and share with the decision maker only that information that can be legally and appropriately considered. It’s not a silver bullet, but it might prove to be useful down the road when that demand letter or, worse yet, that freshly-filed complaint for discrimination arrives on your desk. 

Let’s move on to the practice of prohibiting the use of social media at work. It may seem like an employer would be legally justified in implementing a “no social media” policy during the work day. After all, the dynamic nature of the medium can be a tremendous productivity drain and an alluring nuisance to even the most devoted employee. The law on this issue is still developing, but there is some guidance out there.

First, an employer’s outright ban of social media during the workday may violate federal law because social media can be a mode for fellow employees to band together to address conditions of employment.

Second, it also might violate federal law to discipline an employee who expresses a grievance about the conditions of employment, if that employee was attempting to rally the aid and comfort of fellow employees.

By contrast, it’s not a “protected activity” for an employee to use social media as a platform to rant about the injustices of the employer or otherwise complain to the world writ-large about the employee’s employment predicaments.

It’s a complicated, fact-intensive inquiry in every case, but the bottom line is that employers can’t implement a policy that will stymie the ability of employees to engage in protected, concerted activity about their conditions of employment. 

If you are looking for more information on the “dos” and “don’ts” of social media practices, you may want to visit the National Labor Relations Board (“NLRB”) website on the issue (http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media).

One interesting side note, if you are hunting for a company that has created a workplace social media policy that has received the “blessing” of the General Counsel of the NLRB, think Wal-Mart Stores Inc. That’s right. Regardless of what you think of the retail behemoth, its social media policy is right on the money as far as the NLRB’s top lawyer is concerned.        

The legal issues raised by social media extend outside of the employer/employee context and apply to other corporate endeavors such as advertising and use of intellectual property, which would make for another article. 

Hopefully this article was of some use to you and your company in your quest for being legally social. If so, please feel free to share it, pin it, post it, Snapchat it, like it, tweet it, and retweet it accordingly! #thanksforreading.


Michael Keyes is an intellectual
property litigator in the Spokane
offices of global law firm K&L Gates.
He can be reached at 
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