Peacock Tales • Summer 2019
Love it or hate it, social media is a major part of modern life. Its impact is broad reaching, as it delivers, quite literally to our fingertips, everything from news articles, to updates on our colleague's promotion, to videos and memes featuring animal antics or celebrity quotes.
One thing is certain: our culture shows no signs of abandoning social media any time soon. A Pew Research study conducted in early 2019 indicates that approximately seven in ten adults in the United States use Facebook. According to LinkedIn's "Newsroom" page, professionals worldwide are signing up at the rate of more than two new members per second to use this business networking site.
While its presence is inescapable, social media offers a host of both benefits and hazards for employers and employees.
Social Media Use by Employers
In the absence of a contract or a collective bargaining agreement that states otherwise, in an "employment-at-will" state such as Pennsylvania, private employers have the right to refuse to hire, to discipline and to terminate individuals for any reason or no reason, provided that the employer's action is neither discriminatory nor in violation of public policy. This broad discretion generally extends to a private employer's use of information discovered on a candidate's or an employee's public social media profile, even if the individual posted the material outside of work time.
Employers can benefit greatly from reviewing a job candidate's public profile on a professional networking site, such as LinkedIn or Indeed. In addition to efficiently accessing credentials, an employer can also check for inconsistencies between the information provided on-line and information provided in an interview, as well as obtain valuable information about a candidate's writing skills and professional presentation.
Employers also have a strong interest in reviewing the personal social media profiles that candidates and employees have made publicly available. Employers should be particularly concerned about material that indicates activity which is unlawful or otherwise does not uphold the employer's standards and values, and material that reveals a violation of a workplace policy.
Employers should be cautious, however, not to assume that reviewing material that a candidate or employee has published on social media is completely risk-free.
An employer may encounter information on a social media profile about a candidate's or an employee's disability, gender, religion, ethnicity, age or other protected characteristic. This could lead to allegations of unlawful discrimination if the employer subsequently takes action against the individual.
Employers must also use caution in taking adverse action based on an employee's expression of political opinions on social media. Although political speech by employees working in the private sector is generally not protected, it may overlap with an individual's right to express religious beliefs.
The National Labor Relations Act presents further issues for virtually all employers in both union and non-union settings. The National Labor Relations Board has applied the Act broadly, beyond strictly union-related activity, to protect complaints made on social media by an employee regarding his or her working conditions and wages. The NLRB has also deemed impermissible policies that prohibit an employee's online speech which harms the employer's reputation.
Social Media Use by Employees
Social media, when used appropriately and professionally, can be a great asset to job seekers and employees. Job-related networking sites allow individuals to provide the most up-to-date information regarding their skills and accomplishments to a large pool of potential employers. Employers may not only appreciate the ease of access to this information, but may also look more favorably upon a candidate who demonstrates fluency in using essential twenty-first century technological skills.
Professionals who have already secured their dream job can also benefit from the continuing opportunities afforded by social media to expand and cultivate their networks.
Job seekers and employees must be aware, however, of the latitude afforded to employers in taking action against them based on the information available on social media.
Individuals should always assume that any information on social media could become available to current and potential employers. No internet platform is completely safe from hacking. In addition, even when an individual makes a profile private, options such as Facebook's "tagging" feature can bring information into broader public access. A simple search for an individual's name can reveal all Facebook posts in which he or she is "tagged."
Social media is a cultural juggernaut which neither employers nor employees can afford to ignore. If they are able to use this tool proficiently and professionally, individuals on both sides of the table have much to gain from accessing its undeniable power. Wise employers, job seekers and employees should consult with legal counsel in order to minimize legal risk and maximize the many benefits that social media offers.
Peacock Keller, LLP • 70 East Beau Street • Washington PA 15301 • 724-222-4520