Good News and Bad News for Employers
Social media enables its users to transform the mere communication of information into an interactive dialogue. The ease with which employees can connect and interact by using web-based platforms has spurred creativity and boosted productivity, and that is good news for employers.
The bad news is that the use of social media by its employees can expose an employer to legal and financial risk in a number of ways. The ability of employees to publish and access information, and to comment on information available online can create liability under several federal and state laws.
The federal Fair Labor Standards Act (“FLSA”), and corresponding state laws, require employers to pay overtime to all employees who work more than 40 hours in a work week, except employees defined as “exempt”. Exempt employees are, in general, executive, professional or administrative employees who are paid a fixed salary without regard to the number of hours worked.
Given the ubiquity of smart phones, tablets and similar devices, the ease with which employers can contact and engage employees at all times has never been greater. Employers providing these devices to non-exempt employees may create an obligation to pay overtime where the requirement to be on call is explicit, or where the employer simply avails himself of the ability to interact with an employee outside of working hours.
To avoid a claim for failure to pay overtime, employers should limit the issuance of smartphones and similar devices to exempt employees, or simply refrain from contacting non-exempt employees during off hours.
Confidential information is information about a business that is not available to the general public, and with respect to which a party has taken reasonable steps to protect its secrecy. Financial information, production processes, marketing and advertising plans, pricing information and customer lists are all examples of confidential information. Disclosure of confidential information destroys the element of secrecy, even where the disclosure is unintentional. Many employers have policies regarding the disclosure of business-related information, and may even require employees to sign non-disclosure agreements to protect that information.
The ease with which employees can and do exchange information about their work on sites such as LinkedIn, Bloomberg and Facebook increases the chance of an inadvertent disclosure of confidential or proprietary information. Although confidentiality policies and agreements can provide a means to discipline an employee for unauthorized disclosure, the damage to the employer’s business or competitive advantage will already have been done.
Employers should take steps to protect confidential information with an unambiguous non-disclosure policy and by limiting access to such information with password-protected access and even encryption.
Federal law, including Title VII of the Civil Rights Act if 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Americans with Disabilities Act of 1990 (“ADA”), as well as the law of most states, prohibits discrimination in employment on the basis of race, color, sex, religion, national origin, disability and/or age.
Sexual harassment is unwelcome sexual advances, requests for sexual favors and other physical contact or verbal communication of a sexual nature that directly or indirectly effects or interferes with an individual’s employment; unreasonably interferes with his or her work performance; or creates an offensive, hostile or intimidating work environment. Sexual harassment is a violation of Title VII.
Unwelcome behavior that is based on age may violate the ADEA, and unwelcome behavior that is based on a disability or perceived disability may violate the ADA.
Social media sites such as Facebook, Twitter and Tumblr, as well as electronic bulletin boards, create endless opportunities for employees to post and comment upon communications to or about co-workers. When those communications constitute unwelcome sexual comments, cyber-bullying or the posting of inappropriate photos or videos, and are on sites frequented by co-workers, they may implicate an employer in harassment under Title VII, the ADA or the ADEA.
Employers have a duty to deal with harassing conduct when they know, or should have known of such conduct, whether or not it takes place outside the workplace or working hours.
Inappropriate comments or photos present a relatively clear-cut risk, but even outwardly benign behavior may result in claims for damages. A manager who “friends” a subordinate on Facebook may precipitate a claim by a subordinate that he or she was intimidated into accepting a request to friend, or to connect on a site like LinkedIn. Connecting with a subordinate on Facebook or LinkedIn may enable a manager to acquire personal information about an employee to which the manager would not otherwise have access, such as information about a medical condition. To the extent that this information becomes the basis of an employment decision, it may give rise to a claim of employment discrimination. A claim of discrimination may also arise where a manager friends or connects with one employee, but not another, creating an impression of favoritism or preference.
It is now commonplace for employers to visit social media sites to examine a prospective employee’s use of social media. If a candidate believes that employment was denied because an employer obtained information about the candidate’s protected class status, an employer may find itself on the receiving end of a claim under Title VII, the ADA or the ADEA.
If the public at large can access information posted online, that information is, by definition, not private. That is not the case where an individual takes advantage of user controls that limit access to his or her information. In that case, the individual has a reasonable expectation of privacy, and an employer or prospective employer who defeats such controls to access personal information may be subject to a claim of invasion of privacy.
The widespread use of social media is a relatively new phenomenon, and the law around use of social media is evolving. Employers should take note of the risks, think carefully about how they and their employees use social media, and give serious consideration to developing policies addressing employees’ use of social media.
If you have questions, or would like to discuss formulating a social media policy for your business, visit my website at www.praxislegalsolutions.com for contact information.