The Intersection of Social Media & Employment Law: The Good, the Bad, and the Confusing.

Social Media Scrabble.jpgOn February 6, 2012 I had the opportunity to speak to human resource professionals about legal issues at the intersection of social media and employment law. This HR group is lead by the B2B Connection and its president Gail Sanderson. A special thanks is also owed to Molly DiBianca over at the Delaware Employment Law Blog for her permission to use her posts about social media employment legal issues (Molly has a wealth of information that is definitely worth referencing).  

It was a great turn-out and the group's collective knowledge and insight greatly added to the discussion. If you are a human resource professional in the Metro Detroit area, I would highly recommend you contact Gail Sanderson about joining her HR group and joining the LinkedIn group I moderate, Michigan HR Toolbox (would love to have you join the discussion). 

As to the presentation, HR and Social Media: The Good, the Bad, and the Confusing, it focused on an overview of the risks created by social media for employers, applicants, and employees. The presentation concluded with an overview of "best practices" and practical recommendations for minimizing social media risks.

If you would like a copy of the presentation, complete with links to materials referenced in the discussion, complete this minimalist contact form and reference "social medial presentation" in the notes section.  

Here are a few highlights from the discussion: 

  • Hiring Decisions: I don't know if it is accurate to say that social media is a "new" technology, but it does create new wrinkles on old HR issues. Even so, when it comes to making employment decisions, employers must continue to be prepared to articulate a legitimate, nondiscriminatory reason for any employment decision and retain appropriate documentation to support that decision. This reminder is particularly important given the treasure trove of information that an employer may learn about an applicant or employee, e.g., race, age, pregnancy status, religion, disability status, etc.
  • Employment Decisions & Social Media Record Keeping Requirements: Building upon the preceding point, if social media information is used in making an employment related decision, e.g., hiring, promotion, termination, etc. then employers and their HR professionals must be mindful of the Equal Employment Opportunity Commission’s (EEOC) record keeping regulations. The EEOC's regulations generally require that “any personnel or employment record made or kept by an employer…shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later….Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General,…the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or action.” 29 C.F.R. §1602.14. There are also similar requirements under the Age Discrimination in Employment Act. See 29 C.F.R. § 1627.3.
  • Review existing policies (and if you don't have one, get one): As previously discussed in various posts on this blog, the National Labor Relations Board (NLRB) has put a lot of attention on scrutinizing employers' social media policies, especially non-union employers (see NLRB Releases Second Social Media Advisory Report: What It Means for Employers ) and Social Media and the NLRB: Two Must Read Reports for Employers and HR Professionals). This NLRB scrutiny is one reason why employers must have a carefully and artfully drafted social media policy in place. Equally important (if not more so) employers must make certain that discipline and termination decisions arising out of social media (think Facebook rants) are not going to inadvertently violate an employee's rights under applicable employment laws and regulations, including the National Labor Relations Act (NLRA). 

For more information on employment law and social media issues, including steps for minimizing your social media legal risks, please see information about our employment law services and contact Jason Shinn

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