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Employment Law and Social Media
Webcast
July 29, 2016 NC Bar Center – Cary, NC
570ELW
ii North Carolina Bar Association Foundation Continuing Legal Education
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Employment Law and Social Media
Live Webcast | Friday, July 29, 2016 | 12:00‐1:00p CPE Credit | 1.0 Hour #570ELW ABOUT This program will focus on employment law issues that arise in social media, including employee privacy concerns, personnel policies, and social media in hiring and firing. The topics discussed will be helpful for attorneys representing both employers and employees. SPEAKERS Kristen E. Finlon, Finlon Law PLLC | Charlotte BIO Kris Finlon is the principal lawyer at Finlon Law PLLC, a solo practice focused in employment law and discrimination cases. Prior to launching her firm in April of this year, Ms. Finlon was a partner at James McElroy & Diehl in Charlotte. Ms. Finlon has been practicing for over a decade in the field of employment law, and is admitted in New York as well as North Carolina. She attended Duke University for undergrad and New York University School of Law for law school. In her free time, Ms. Finlon is a blocker for the Charlotte Roller Girls, Charlotte’s women’s flat‐track roller derby team.
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Kristen E. FinlonFinlon Law PLLC
July 29, 2016
Social Media: (n) forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos).
Source: Merriam-Webster Dictionary, www.merriam-webster.com
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As a general rule, people share a ton of information on social media sites.
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Privacy Issues
Social Media and Hiring
Employee Policies
Discovery
Information on the internet is not private.
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“But I’ve got my privacy settings set super-high!”
On some social media sites, it is possible to severely restrict who can see wall posts. Most sites also have some private-messaging functions which are further restricted.
But any expectation of privacy is illusory.
Several states have passed laws prohibiting employers from requiring an employee or applicant to share information on his or her social media sites.
The North Carolina General Assembly considered such legislation, but has not passed it.
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The upshot is that, in North Carolina, employers can access a lot of what is on social media.
The question is: Should they?
Finding and hiring new employees.
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Social Media can be an excellent resource for recruitment, BUT…
Targeting a particular demographic can open up an employer to claims of discrimination; and
Social Media itself may only be used by particular groups.
Why look at an applicant’s social media?
• An applicant’s LinkedIn profile may contain information which doesn’t match what’s on his or her resume.
• An applicant’s Facebook or Twitter account may show up legitimate red flags (e.g., hate speech, drug use, violent behavior, etc.).
BUT…
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USE CAUTION when doing online research of new candidates.
Information online might reveal a candidate’s race, labor affiliations, sexual orientation, family status, etc. –information which could give rise to discriminatory hiring practices.
Best Practice: Use a third-party, or a specific employee who conducts social media checks and is not involved in the decision-making process.
Information should be sanitized before sharing it with the decision-makers.
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What policies can an employer implement with respect to existing employees?
Can an employer monitor the online activities of its employees?
• No. Surveilling an employee’s online activities – or appearing to do so – violates the NLRA.
• Voluntary connections (“Friend Requests”) are permissible, but proceed with caution.
• An employer is permitted to monitor online activity for business purposes, but may not target protected activity.
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The National Labor Relations Act protects the right of employees to engage in collective bargaining.
The NLRA has taken the position that employee policies relating to online activity cannot infringe upon employees’ rights under the Act.
Employers may discipline employees for online posts or comments which are libelous or maliciously disparaging of the company.
HOWEVER, online activities which lean toward collective action are protected by the Act.
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Employers must address harassment whether it occurs inside or outside the physical workplace, and social media is no exception.
The EEOC has also indicated that employers may be liable for harassment originating from employer-provided devices.
Notes for Attorneys
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Social Media is going to be discoverable, subject to the same relevancy requirements as other electronically stored information.
Craft discovery requests to include information on social media.
Best Practice: if your client knows there is information on social media which might be pertinent, capture it early.
When searching for information responsive to discovery requests, don’t neglect social media posts and private messaging.
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Subpoenas for third-party information will be subject to the requirements of the Stored Communications Act.
Most social media platforms have information on their websites about their policies and procedures for responding to subpoenas.
Kris FinlonFinlon Law PLLC(980) 221-1935
