Social Media and the Workplace:A LOOK AT SOCIAL MEDIA POLICIES AND FACEBOOK FIRINGS

Focus:

Legal Questions Case Law Statute Law

Legal Questions: EEO

Using social media to determine whether to hire or fire someone is not in compliance with equal employment opportunity (EEO) laws.

According to a press release by the US EEOC: The use of sites such as LinkedIn and Facebook can provide a

valuable tool for identifying good candidates by searching for specific qualifications…but the improper use of information obtained from such sites may be discriminatory since most individuals' race, gender, general age and possibly ethnicity can be discerned from information on these sites (EEOC, 2014, Paragraph 4).

Legal Questions: EEO

As Dornstein (2012) states, there is a lot of similarity between each states social media laws because they face similar key issues, “balancing individual rights and privacy against the rights and interests of the company” (p. 36)

Legal Questions: Concerted Behavior

The concerted nature of employee conversations was included in the National Labor Relations Act of 1935, although social media was far from the minds of the writers of this act.

Sec. 7. [§ 157.] of the act states employees have the right to “engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Legal Questions: Concerted Behavior

Concerted behavior is “jointly arranged, planned or carried out.”

Can be chatter in the break room or via social media. Employees have been fired for these conversations via social media

while they likely would not have been for the same conversations in the break room.

Research Questions

1. What happens when there is discrimination against a potential employee due to social media findings?

2. What happens when employees are fired for posts made on soial media, specifically Facebook?

3. What is being done to prevent unethical treatment of employees on social media?

Social Media Discrimination

In 2011 and 212 many companies in numerous states required applicants to give them their social media user names and passwords.

The Maryland Department of Corrections required applicant Robert Collins to provide his Facebook login information.

According to Bannister, et al. (2014) the department said this information was required to: Review wall postings, email communications, photographs, and

friend lists, in order to ensure that those employed as corrections officers are not engaged in illegal activity or affiliated with any gangs (p. 7).

Facebook Firings

Triple Play Sports Bar and Grille v. NLRB (2014)

Two employees fired for interacting with an upset Facebook status by another former employee.

Facebook Firings

Triple Play case was only the third of its kind to go to an Administrative Law Judge.

The court determined that, even though the discussion was on Facebook, it was concerted activity.

The ALJ stated that: “the specific medium in which the discussion takes place is irrelevant to its protected nature (Neal, 2012).

Preventing Unethical Social Media Use

Most states have outlawed employers from requiring social media information in job screening processes.

Halpern and Gerdner (2013) state that rants can be prohibited as long as they do not engage another employee or show complaints about the workplace conditions.

Employers can restrict social media use while on the clock or on company equipment, but cannot tell an employee they cannot use social media while working for their company.

Conclusions

Social media law is still new, but it is developing at a fast rate.

Not all social media policies are created equally, but employers need to look at their policies in depth to make sure they’re in compliance with the law.

Limitations

Social media law is still new, so there are not a lot of law reviews out there in regards to social media in the workplace.

Law reviews take time to write, so a case that happened recently likely does not have a full review for it yet.

Future Research

Focus on the use of social media to hire, fire or write someone up.

Focus on the use of social media while on the clock and how it affects workers productivity.

Future research could find the positive and negatives of using social media while on the clock.

Include the use of social media as a resource for companies when recruiting new employees.