Modern Employment Law [Part 2]
by Greg R. Mansell
Social Media and Networking
Perhaps the largest issue facing employment law today is the affect of social media and networking sites on employers and employees. The boom of social media from MySpace, to Twitter and Facebook, to more professionally focused sites like LinkedIn, creates many opportunities and access to information for employers and employees; however, these sites also create risk and liability. These sites can be used or misused in the hiring process, while employed and even after employment. In the hiring process, employers may become privy to otherwise protected information such as age, sex, religion, disability, genetic information, race, national origin and/or pregnancy.
14 In addition to the potential of disparate treatment claims, an employer must consider the possibility that access and use of these sites in hiring may result in disparate impact claims. Further, employers’ use of these sites in firing decisions creates liabilities including the potential of infringing upon employee rights under the National Labor Relations Act
15, Fair Credit Reporting Act, Stored Communications Act
16, and privacy
17, whistleblower and retaliation laws. Additionally, employees’ comments on these sites are available and open to the public in many situations and may expose the employer to additional liabilities. Employees also face risks by posting information not protected by any of the abovementioned laws about their employer online that may result in adverse employment action.
18 Again, although the benefits of these sites are widespread; employees must be aware of the risks and employers must develop compliance policies to circumvent the many potential risks and liabilities associated with this technology.
Take Away
The lesson is for employers and employees to embrace and appropriately utilize the growing advancements in technology and social media. However, the caution is to assertively address these advancements with comprehensive prevention-focused policies and constant education concerning the risks and liabilities that both employers and employees face when using these resources. The resources may and should be used to assist employers and employees, yet these resources must be monitored and regulated by assertive, preventative policies to avoid the serious risks and disadvantages of using them. Advancements will continue, so must policies and education on use of these resources. Continuous, comprehensive understanding and assertive policies are the foundation steps in avoiding risks.
References
Written by Greg R. Mansell, Attorney at Law, BeggsCaudill, LLC with assistance from Margaret Prunte, Student at The Ohio State University, Moritz College of Law.
About the Author: Greg R. Mansell focuses his practices in employment law, primarily on the plaintiff's side. In addition, he advises businesses on policies contained in employee handbooks and provides guidance to human resource departments. Mr. Mansell has contributed and authored several articles on employee rights in the workplace and upon termination. Read more.
