The 4 Four S’s of Social Media Risk

Social media is clearly part of the cultural fabric, says attorney Elijah Yip, but that doesn’t mean there aren’t risks when employers use it or try to limit employees’ use of it.

The 4 S’s of Social Media Risk

Yip, who is litigation partner at the Honolulu office of law firm Cades Schutte LLP, offered his four S’s at the Advanced Employment Issues Symposium held recently in Las Vegas.

S #1. Searches

What’s the Risk?

The biggest risk in searches is that you might learn information that you don’t want, for example, information about race, national origin, or health or genetic information.

For example, on a typical Facebook page one might see:

• A candidate rolling out her birthday cake with her age of 45 in candles.
• A reference to her Scientology membership.
• Guess what, everyone, I’m pregnant!
• Here’s a link to the Walk for Breast Cancer donation page—please donate in memory of my mother.
• Picture of a candidate in a wheelchair that also reveals the candidate’s race.

Once you have this information, you can’t “unring the bell.” Lawsuits citing the items listed above could come in under Title VII, GINA, and the ADA, to name a few.

Risk Management Tips

• Create a “firewall” between the searcher and the decision maker. The searcher then filters the information and passes on only job-related findings.
• Delay the search until after meeting the applicant. At that point, many factors are already apparent (age, gender, race, obvious disability, etc.).
• Be consistent. Do a similar search for all applicants for the job.
• Document your search plan and findings.
• Don’t ask for access to restricted social media content; limit searches to publicly accessible sites.
• Be aware of state laws (many states have social media password laws, and legislation is pending in many others).
• Don’t hack or use deceptive methods to gain access to restricted content.
• Develop a policy.
• Routinely train staff on the policy.

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S #2. Speech

What’s the Risk?

Employee social media conduct can expose employers to liability for violation of employment laws. For example, employees may say things on social media that:

• Show evidence of discrimination.
• Could be considered harassment.

Attempts to regulate employee social media conduct may violate the National Labor Relations Act. The Act permits employees to discuss terms and conditions of employment without reprisal, and the National Labor Relations Board (NLRB) has been interpreting this right broadly.

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Risk Management Tips:

When disciplining or terminating an employee for posting social media content, consider these signs that the posting might be protected.

• Attracts or solicits a response from coworkers.
• Contains a call to action.
• References collective bargaining activity or labor requirements.
• States concerns that management was previously made aware of.

While some of the earlier NLRB decisions are being questioned because they were made by a board consisting of some members who were appointed as recess appointments, the board is now ready to act without that cloud.

In tomorrow’s Advisor, two more S’s, Surveillance and Secrets, plus we announce a new webinar designed to help you get your job descriptions into shape.