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Judy Greenwald

Using online information against employees and applicants carries legal risks

April 13, 2014 - 6:00am


Employers that use information obtained from social media to discipline an employee or evaluate a job applicant run the risk of violating state and federal laws, yet there are circumstances in which employers' use of such information is legally defensible.

The employer's type of business, its existing social media policies and how the employer obtains potentially damaging information about a worker or prospective worker factor into the boundaries between what a court would consider legal or rule that it violates worker privacy, disability and and/or gender-orientation rights among classes of workers protected by federal and state laws.

“Through social media, you may be able to get access to information you would otherwise not be entitled to,” such as people talking about their medical conditions, said Aaron K. Tantleff, a partner with law firm Foley & Lardner L.L.P. in Chicago.

In terms of appropriate boundaries, “Some of it may well depend on what your privacy policy states” and whether or not employees expect privacy concerning social media content about them, said Scott L. Vernick, a partner at Fox Rothschild L.L.P. in Philadelphia.

But anything that an employee does that is lawful and does not affect the business, is probably within a “zone of privacy” employers should avoid in making decisions concerning workers, he said.

In evaluating their social media practices, employers “have to take into consideration somewhat the culture and demographics of their organization, and the nature of the individuals that work for them or that they partner with, or the nature of the entities with which they interact,” said Shawn Ram, national technology practice leader at Aon Risk Solutions in San Jose, Calif.

Social media policies may differ if a company is primarily consumer-oriented, a business-to-business firm, a professional services organization or a health care organization, he said.

According to the Denver-based National Conference of State Legislatures, legislation banning employer access to social media user names and passwords has been introduced or is pending in at least 28 states this year.

Most states “have an exception for workplace investigations,” but the exceptions can be very broad, covering all workplace investigations, or narrow, covering only investigations such as trade secret misappropriation or securities law violations, said Philip L. Gordon, a shareholder at Littler Mendelson P.C. in Denver.

Edward R. Quinn Jr., president and CEO of Rockville Quinn Management in Rockville Centre, N.Y., said employers would be prudent to restrict themselves to information that is in the public record.

“What's really important is to understand that you can't go supersleuthing,” said Sarah K. Goldstein, director of employment practices at Kaufman Dolowich & Voluck L.LP. In Los Angeles.

For someone on Facebook, “you can't make up an identity and friend that person” to gain access to their online information. Nor, if a job applicant is the friend of a current employee, can an employer ask the current employee to access that information for the employer, Ms. Goldstein said.

“You have to be very, very careful, and companies should have (human resources) involvement when reviewing Facebook pages because they may find information they're not entitled to consider” when making a hiring or firing decision, such as pregnancy or information related to the Genetic Information Nondiscrimination Act.

“You can get a GINA violation because (on Facebook) it says, "I'm running a marathon for my mother, who's got diabetes,' something as simple as that,” if that information is used to make a negative employment decision, Ms. Goldstein said. Ask HR to “black out” all information an employer is not entitled to consider in making a job decision, she said.

“Set up a filtering process” in relaying such personal information, Mr. Gordon said.

On the other hand, if every picture on someone's Facebook page shows them with a can of beer, an employer is entitled to take that information into consideration, said Ms. Goldstein.

If someone posts something on Facebook that is visible to all, “it's fair game for employers,” said Christopher G. Ward, a partner at Foley & Lardner in Chicago. If “the employer is not doing anything to circumvent an employee's attempt to keep social media activity private, then you don't have an issue,” Mr. Ward said.

There are nuances to consider, though. If an employee approaches a supervisor unprompted with evidence of another worker's abuse of leave under the Family and Medical Leave Act, for instance, the information learned is “fair game,” he said. Similarly, if a worker friends a manager on Facebook, goes on leave because he cannot stand for more than five minutes and then posts a picture showing him walking in a St. Patrick's Day parade, it can be used in an employment-related decision assuming the manager “did not do anything there to try and violate the employer's social media policy,” he said.

 



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