by John Gilbert
Employers lament the uncertain legal state of social media employment issues. While this column cannot provide a thorough or sufficient treatment of the subject, three issues can be addressed.
Many states, including Illinois, prohibit employers from asking employees and applicants for passwords to social media accounts. Thus, employers can only view public settings of social media.
The legal wisdom of reviewing even public settings of social media of employees and applicants is debatable. Some experts believe that reviewing public information on an applicant’s social media site provides additional useful information for decisions. Others caution that viewing public postings on social media sites may reveal information which the employer is either not allowed to know or should never use in employment decision-making processes, thus creating potential liability under equal opportunity employment laws. Like other states, Illinois prohibits employers from asking job applicants whether they have ever filed a workers’ compensation claim, and that is one of many pieces of information an employer could inadvertently discover during the selection process when reviewing applicants’ social media. Employers must be careful and seek legal advice on this developing, unsettled legal issue.
Another issue is the potential of an employee defaming someone who is the subject of a social media post, thus creating potential liability for the employee and the employer unless it is clear from the post that the employer does not endorse the defamatory statement. There may be other defenses available to the employer in a defamation claim; however, employees who engage in social media communication should be advised they cannot speak on behalf of the employer or as a representative of the employer without authorization and should disclaim any representational capacity. If what the employee posts is true, liability for defamation is extinguished. However, liability for invasion of privacy may still exist; thus, employers must be diligent to make sure employees do not speak on their behalf without authorization.
An emerging issue of which most employers are not aware is employees’ use of social media and its treatment by the National Labor Relations Board. Many employers mistakenly believe that if their workplaces are not unionized, the National Labor Relations Act does not apply. Employees of private employers are protected by the Act regardless of union status. Non-unionized employees are covered by the Act. In the last few years, the Board has ruled that discipline for postings on social media which contain information related to hours, wages, and working conditions may be protected under the Act. In a number of cases, the NLRB has held discipline against employees for what they post violates the Act. Courts have yet to define the parameters in this area, but the NLRB has been aggressive; thus, employers must seek legal advice when drafting and implementing social media policies.
Social media use by employees gives rise to other issues beyond the space allotted to this article. Consult labor and employment attorneys for guidance.
Practicing law since 1975, John Gilbert has represented some of the largest companies in the United States. Working from Sandberg Phoenix’s Edwardsville office, John focuses his practice on labor and employment, commercial, and higher education law, as well as civil rights defense.
Submitted 9 years 206 days ago