In the age of digital and social media, harassment isn’t confined to the office or during work hours. Harassment can take place on social media platforms. The U.S. Equal Employment Opportunity Commission (EEOC) recommends that workplace anti-harassment policies incorporate dealing with social media. Even if employees post harassing or derogatory information about coworkers away from the workplace, for example, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. As a result, the EEOC found that “harassment should be in employers’ minds as they draft social media policies and, conversely, social media issues should be in employers’ minds as they draft anti-harassment policies.”
In our post, “How to Handle Harassment in the New Workplace,” we defined workplace harassment and explored how to handle violations in order to protect your employees as well as your company. Significant changes in technology over the past decade are having a profound impact on human resource policies, from screening candidates to monitoring employee activity on social media sites.
There are a number of legal issues involved in using social media to draw conclusions about a potential job candidate or about an existing employee. In some states, it is illegal to access such information, while in other states employers could be accused of negligent hiring and negligent retention if they do not take necessary action after gaining information from social networking sites.
Social Media in Screening
SHRM’s 2016 survey, Using Social Media for Talent Acquisition—Recruitment and Screening, found that 84 percent of organizations are using social media for recruiting, that 43 percent are using it to screen applicants and that 66 percent are taking steps to leverage mobile recruiting to target smartphone users.
When recruiters use online search engines and social networking sites to screen job candidates quickly, easily and informally, they may pull up either a wealth of helpful information or very little, depending on how protective the prospective employees are of their online privacy. In spite of these risks and uncertainties, human resources is increasingly using the Internet as an HR tool.
For example, social media can provide a snapshot of applicants’ professional personas. Do they belong to professional organizations? What type of volunteer activities are they involved in? What type of other organizations do they align themselves with? Will they represent the organization well in the community?
Once a candidate becomes an employee, social media policies are now a must for today’s workplace. While employers don’t want employees feeling as if they are being “watched” 24/7, it has become necessary to prevent harassment. It’s also a delicate balancing act.
It’s important to understand that employers can be held liable for actions their employees take within the course and scope of employment. For example, if an employee posts false statements or rumors about a competitor or co-worker on Facebook, you might be exposed to potential defamation claims.
Currently, there are no specific federal laws that prohibit an employer from monitoring employees on social networking sites. You can install software on company computers that does this, or hire third-party companies to monitor online activity. But to maintain trust among your employees, you should develop a social media policy that clearly defines acceptable behavior and whether your company will monitor access and usage at work.
At the minimum, your social media policy should state that employee online behavior must not violate privacy laws, or be discriminatory, or defamatory. Your policy should also keep up with evolving federal and state regulations aimed at social media activity in the workplace.
Some states have laws that prohibit employers from disciplining an employee based on off-duty activity on social networking sites unless the activity can be shown to damage the company in some way. In general, posts that are work-related have the potential to cause the company damage. Anti-discrimination laws prohibit employers from disciplining employees based on age, race, color, religion, national origin or gender.
Off-duty employee conduct, such as social media posts, may also be protected under federal laws. As many employers have learned the hard way, the National Labor Relations Board (NLRB) may restrict an employer’s right to terminate an employee for posting disparaging comments on social media. You can also violate NLRB rules by maintaining overbroad social media policies if they prevent employees from discussing their wages or other conditions of employment.
The NLRB has issued a number of rulings involving questions about employer social media policies. The NLRB has indicated that these cases are extremely fact-specific and has provided the following general guidance:
Your employees can be great brand ambassadors on their own social sites as well as posting on company accounts and blogs, if they’re clear on what constitutes good online habits.
Continuous background criminal checks are required to ensure your company is protected — an initial background screen is no longer sufficient to prevent potential liability.
For ongoing monitoring related to criminal activity, employers should consider hiring a third party to conduct the search. Employers should determine what type of information is relevant to the job and instruct search firms to report only this type of information, thereby avoiding potential lawsuits related to information that is protected by law, such as religious or political affiliation.
Additionally, because the laws vary from state to state (and they change over time), a third party firm specializing in criminal screening will save your company time in research what is and what isn’t legal to report on, as well as what information may result in disciplinary action up to and including termination.
Screening tools can be highly effective for mitigating and identifying workplace harassment.
Companies have valid reasons and effective social listening tools for monitoring employees’ social media activities, especially if they suspect wrongdoing. However, if companies are not careful, they can violate state or federal regulations or elicit lawsuits from employees. Human Resources already has its hands full, but ensuring its policy on social media and ongoing criminal screening is up-to-date is imperative.
According to SHRM, the role of the human resource management professional in managing workplace privacy is to facilitate the adoption of reasonable and effective practices that protect employees while minimizing the risk of employer liability. HR should ensure that the monitoring is narrowly tailored, that the need is supported by a legitimate business justification and that employees understand they have no reasonable expectation of privacy. Letting employees know that they will be monitored removes employees’ reasonable expectation of privacy — the element that often forms the basis for invasion of privacy lawsuits arising under common law.
James C. Owens
President and CEO
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