To snoop or not to snoop, that is the question. Whether or not to review an applicant’s various social networking sites (“SNS”) prior to making a hiring decision or monitor an employee’s SNS when making an employment decision goes beyond conventional wisdom; there are significant potential legal risks, vis-a-vis certain federal, state, and local laws, that employers should be aware of before making the decision to look at SNS. Our Award Winning New York Employment Attorney discusses some considerations below.You should contact an experienced attorney to discuss your specific questions.
WHAT ARE THE POTENTIAL BENEFITS?
As discussed in yesterday’s blog post, employers may believe it necessary to review employees’ SNS in order to protect trade secrets and proprietary information, to comply with certain regulations, or simply as a preventative measure in order to keep the employer from being exposed to legal liabilities. A simple post on Facebook by a hospital employee may violate HIPAA. A tweet on Twitter about a restaurant manager’s alleged criminal history may defame the manager, embarrass the company, and lead to disciplinary issues in the workplace.
Reviewing an applicant’s SNS, too, could potentially help an employer in making a hiring decision. Knowing beforehand that an applicant is an ISIS supporter may legitimately make a security company nervous about hiring and arming the individual. Learning that an applicant has a short temper and is prone to violence would be useful information for an employer to know before hiring that individual to work in the company’s complaint department.
SO WHAT ARE THE RISKS?
SNS’s can provide an incredible amount of information about an applicant or employee. While some things may appear harmless, such as their work and education history, their hobbies, likes and dislikes, and others may be understood to be more sensitive- an applicant or employee’s sexual orientation, religious beliefs, disabilities, or political leanings, all of these pieces of information, if used incorrectly, have the potential for causing liability on the employer. For example, it is easy to see that if an employer sees an applicant’s photos on a social media site and then decides not to hire that person based on their race, age, gender or another protected category that situation can lead to liability. Consider a different scenario for a second. If an employer looks a social media site and then rejects the employment opportunity, it may have to defend against an allegation that it used information on the social media site in a discriminatory manner even if if did not.
But invoking a claim for discrimination based on a protected class under the various human and civil rights laws is only one prong of the risks that employers face when viewing applicants’ and employees’ SNS. As detailed in recent postings, New York State also protects against “lifestyle discrimination” under the Lawful Recreational Activities. Legal recreational activities that take place outside work hours, such as smoking cigarettes, hunting or protesting, may cause an employer to take some adverse employment action, and find themselves inadvertently running afoul of the law.
As we have detailed in previous posts, the National Labor Relations Act protects concerted activities between employees, even those activities that are concerted via SNS. Not knowing what qualifies as concerted activity, an employer may take action that opens the company up to liability.
Even if the employer doesn’t take those protected characteristics or activities into consideration, should the employer take any adverse action against the applicant or employee (i.e. refuse to hire, terminate, etc.), having viewed the SNS may give rise to an allegation of a violation of these laws, the defense of which can cost the employer significant time, energy, and resources.
HOW TO AVOID THE PITFALLS
There are some precautions that an employer can take to minimize the risks that are associated with viewing an applicant’s or employee’s SNS. As a threshold employers should determine if there is any information that they may find on SNS that would be relevant to the employment. Fishing for fishing sake cannot lead to anything good. Employers, too, may only want to become involved with employees’ or applicants’ private lives only when there is reason to be concerned. Should the employer decide to proceed, the following steps can be taken:
If you have any concerns or questions with regard to your obligations or potential liabilities as an employer concerning an employee’s private social networking, contact our New York Employment Law Attorney for a confidential consultation at (800) 893-9645.
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