The Love-Hate Relationship Between Employers and Social Media

The InterviewEmployers and social media have a strange and constantly evolving relationship.  As discussed in a previous post, an employers’ attempt to discipline or terminate an employee for the content of their online postings may constitute an unfair labor practice under Title 7 of the National Labor Relations Act (NLRA), which states that employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  In addition,several states have passed laws prohibiting employers from requesting either applicants or current employees to provide social media account information, such as account names and passwords.

On the other hand, employees’ social media postings have proven extremely helpful to employers when when defending against employee lawsuits, as they may include statements that will harpoon an employee’s case. Courts are still in the process of determining the extent of an employer’s right to discovery of such social media information.

And now, a case in Illinois indicates that social media can also expose employers to liability under the Age Discrimination in Employment Act (ADEA) for merely viewing the candidate’s profile during the course of the hiring process.  As its name implies, the ADEA protects against the use of age as a factor when making a hiring decision. In the Illinois case, the applicant sued an employer for age discrimination, alleging that the employer knew of his age through his LinkedIn profile. Even though his profile only revealed his college graduation year, and not his date of birth, the court found this to be enough to place the employer on notice that the applicant was protected by age discrimination laws.  In other words, the applicant’s allegation was enough to support bringing the case, which, even if meritless, the employer was obligated to defend at substantial cost.

Although cases are still ongoing, it is becoming increasingly clear that employers hate social media for its tendency to generate employment litigation, but love social media when it comes to defending litigation.   A strange and evolving relationship indeed.

Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.
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