Tag Archives: equal employment opportunity commission

Using Social Media Content to Inform Employment Decisions

Social Media Series: Using Social Media Content to Inform Employment Decisions

This article is part of an ongoing series about social media in the workplace. We’re interested in your feedback/questions, so please comment and the authors may address your issue in their next article.

Assuming that employers properly obtain personal information about an applicant from social media sites, employers still need to be careful to avoid certain risks associated with using such information to make employment decisions. While it may seem a great idea to use information obtained through social media to help make hiring decisions, it may not always be wise to do so.  In certain instances, using information provided by Facebook, LinkedIn, Twitter and other social media sites may expose employers to liability for such claims as discrimination and negligent retention and hiring.

In addition, if the employer learns from Facebook information about an applicant’s protected characteristics that is not apparent from the application or interview, such as the fact that the applicant is pregnant or disabled or has a father with cancer, and the employer does not hire that applicant, the employer may be exposed to liability.  Such characteristics about an individual generally are protected by state and federal discrimination laws.

If the employer used this information to make a decision not to hire the applicant, the employer likely is liable for discrimination. Even if the employer did not use this information in the hiring decision, the fact that the employer obtained this information prior to making a determination may cause the applicant to believe that discrimination has occurred and file a charge with the Equal Employment Opportunity Commission.

On the other hand, there may be instances where an employer’s use of such information is appropriate.  For example, if a private employer discovers that an applicant has posted disparaging remarks about the employer, its clients or other individuals, the employer generally may use that information in deciding whether to hire the individual. Such disparaging remarks are likely not protected speech in this instance and, indeed, may be an indicator of the individual’s ability to be successful at the particular place of employment.

An interesting conundrum may arise in other situations, such as where an employer learns of information about an applicant that suggests a negative tendency, yet the employer still hires the person. For example, if a private school discovers that a teacher applicant was bragging online about partying with his students, and the school still hired the applicant, the school may expose itself to a possible negligent hiring claim down the road if the individual engages in misconduct with his students.

The message is that there is no single bright line rule for using information from social media sites to make hiring decisions about prospective employees.  The answer largely depends on such factors as the type of employer involved and the type of information at issue.  To facilitate proper use of such information, an employer should have a social media policy in place and should train its managers on the policy.

Lori Higuera, a director with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

[stextbox id=”grey”]More than ever, employers need guidance about social media in and around their workplaces. We’d like to hear from you about your issues and questions related to social media and your business. Please post a comment below this story and we may address your issue in the next edition of our Social Media Series.[/stextbox]


Social Media as evidence

Social Media Series: Using Social Media As Evidence In Lawsuits

This article is part of an on-going, social media series.

When litigating against a former employee, the Internet can lead to an evidentiary goldmine for an employer. A former employee’s social media activity may provide evidence of the employee’s breaches, such as a violation of a non-competition provision or breach of confidentiality.

Courts have addressed the litigation strategy of discovering evidence in an employee’s communications in cyberspace. Two recent cases make clear that emerging law tends to favor an employer’s ability to tap into an employee’s social media space as another litigation tool.

In Indiana, the Equal Employment Opportunity Commission (EEOC) filed a sexual harassment suit on behalf of several employees who claimed emotional distress resulting from the alleged wrongdoing. As part of its defense, the employer sought to discover information from the plaintiffs’ Internet social networking site profiles and other communication from their Facebook and MySpace accounts. The court decided that this information was discoverable by the employer because the plaintiffs already had shared the information with at least one other person through private messages and perhaps a larger number of people through postings.

Similarly, in New York, the court rejected an employee’s assertion that her social media activity was private and could not come out as part of the lawsuit. She had sued her employer claiming discrimination based upon her disability. The employer sought to use her Facebook content as evidence that she was not disabled at all. Rejecting the plaintiff’s privacy concerns, the court explained there is no right to privacy in social media content, adding that when a person chooses to disclose information on a social media site this act of sharing such information weakens her ability later to claim the information is protected by privacy.

Even if not considered private, how can it be that an employee’s entire social networking site activity is relevant to his specific claims in a lawsuit? An Indiana federal court answered this question in a situation where the employer sought access to its employee’s entire body of social networking activity on Facebook and MySpace to seek evidence about the employee’s emotional distress claim.

The court determined all of the employee’s social networking activity must be turned over to the employer, including any profiles, postings or messages, status updates, wall comments, causes joined, groups joined, activity streams, and blog entries that reveal, refer or relate to any emotion, feeling or mental state.  Even though the courts’ recent actions show a general favoring for the employer when it comes to discovery of employees’ social media activity during a lawsuit, employers would be wise to watch their own social media activity. The impact of social media in trials reaches across the courtroom to everyone involved in the litigation, including the employer’s agents and key witnesses. Accordingly, employers should view the courts’ rulings on social media as a premonition and make sure their own organization is in order with the appropriate social media protocol and policies.

Lori Higuera, a director in Fennemore Craig’s Litigation Section, co-authored this article.

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