Posts tagged ‘Facebook’
Suppose you have a supervisor who takes an avuncular interest in one of the up and coming employees he manages for your credit union. He likes him so much that he tries to set him up with his daughter. The employee politely refuses the offer, but the daughter ends up friending him on Facebook. She tells her father that one of the organizations the employee has liked on Facebook is dedicated to advocating for same-sex marriage.
When the supervisor, who is deeply religious, turns hostile against the employee, can the credit union be sued for discrimination, particularly in a state like New York that now bans discrimination based on sexual orientation? Yes it can be.
This hypothetical is not a hypothetical at all. A great article in this month’s Inside Counsel magazine highlighting the legal challenges faced by social media in the workplace noted a case in which the Library of Congress is being sued by an employee who claims he was discriminated against after a supervisor surmised he was gay based on his Facebook page.
Now, for the record, I don’t get Facebook and I never will. Why people want to post the minutia of their lives to scores of casual acquaintances I will never know, but the fact is they do. As reckless as I think some people are with their Facebook accounts for acting as if this information is private, employers are better off using that as their working assumption as well.
Why? The simple legal answer is by accessing someone’s Facebook page, you are put on notice regarding information that you have no right taking into consideration when dealing with an employee and the mere act of doing so may create a factual dispute in a future lawsuit. For instance, let’s say you find out that an applicant belongs to a local mosque and an equally qualified candidate belongs to the Methodist Church. No good can come from knowing any of this.
I talked about this with a friend of mine recently, who doesn’t ask for passwords but will see what he can find on an applicant’s Facebook page. His argument is that good employer due diligence includes knowing everything about a potential employee’s judgment and character: a picture of him taking a hit from a bong in his college dorm speaks volumes about both. However, a good enough interview process should give you a means to fairly assess an applicant. We’ve done this for hundreds of years after all, without Facebook.
There’s also a legislative component to this issue. An increasing number of states have either passed or are considering legislation limiting employer access to employee social media. Keeping in mind that the views I express are my own and not necessarily those of the Association, it is time for New York and maybe even the federal government to pass such legislation. As silly as it is for employees to think that they have an expectation of privacy on Facebook, the world is changing and employers need bright line rules to delineate when they cross the line between employer due diligence and voyeurism.
Assuming you weren’t able to get in on Facebook’s Initial Public Offering (IPO), and will therefore have to show up for work on Monday, now seems like a good time to remind credit unions that regardless of your size, social media raises questions for your HR staff at each stage of the appointment process. Consider this your social media audit.
1. Do you go on the Facebook page of prospective employees? If so, why? If not, why not? Credit unions seem somewhat split on this one. There’s a very good argument to be made that doing Facebook checks are more trouble than they’re worth because they could open the door to arguments that you discriminated against applicants (for example, let’s say you only interview White applicants). Conversely, if you’re hiring a Chief Executive Officer, do you really want to hire someone who has posted a picture of himself walking around with a lampshade on his head at last year’s Christmas party? My personal view is that the higher up the position, the more prudent it is to view the public pages of Facebook and other social media, but I would only do this as part of my due diligence when considering my top candidates for a given position. If the person doesn’t have a public page, then I would say here’s a discrete person who knows the importance of keeping her private life private, an increasingly rare commodity in the Facebook age.
2. Let’s say you hire Bob and find out that he’s complaining about the workplace. This is actually one of my favorite HR issues. The National Labor Relations Board (NLRB) has issued a guidance pointing out that even non-unionized employees have a right to engage in concerted activities discussing workplace conditions. So, if you find out that Bob is complaining that the credit union’s marketing plan isn’t getting new members in the door and that ten people have joined his discussion on Facebook, tread carefully before disciplining him. With or without a policy about speaking out publicly against the company, the NLRB has signaled that it will protect such discussions. Conversely, you don’t have to put up with insubordination. So if you find out that Bob routinely badmouths his bosses and these rants have nothing to do with work place conditions, then you are on firmer ground to discipline him. As you can see, this is an extremely fact-sensitive issue, so consult with an expert before taking steps against an employee in this context.
3. Let’s say you legally fire big-mouth Bob. Now he has lots of time on his hands and he’s using it to spread the word over Facebook that XYZ Credit Union is the worst place to work in the world and that he’d feel safer depositing his money into a Greek bank account. What can you do to shut him up? Not much. The few cases on this issue have pointed out that the former employee enjoys first amendment protections against any attempt by a company to get a court ordered injunction. You could try to make this a contract issue by including language in employment contracts prohibiting public comments against the company. However, this presupposes that you have a contract with the employee and that it is binding once he leaves. My personal view is that you’re just going to have to ignore big-mouth Bob and make sure you have your own, robust social media presence so you can effectively and quickly combat any bad information that is out there.
Suppose after reading this blog, you take one more look at your Facebook and find that an employee of the credit union got home from work last night and posted a sarcastic critique of the credit union’s latest marketing advertisements. Can the employee be fired? This is the type of question for which the National Labor Relations Board (NLRB) provided guidance in a memorandum released by its Office of General Counsel summarizing fourteen administrative decisions in which employees were terminated after posting comments on social media.
As explained by attorney Michael Schmidt in a column yesterday in the New York Law Journal (subscription required), the analysis provides a useful advice for any one involved with your credit union’s HR and management functions. Most importantly, even if your credit union is not unionized, the National Labor Relations Act gives employees the right to engage in “concerted activities” for either the purpose of collective bargaining or to provide mutual aid and protection. This means that before firing that employee who bad-mouthed the credit union’s marketing efforts, there are several things to keep in mind:
- Whether the posting on Facebook was with or on the authority of other employees and not solely the opinion of the poster. In other words, was the employee just griping about a bad day or are other employees encouraging him to speak out about a bad idea.
- Assuming a group of employees are acting together (i.e. concerted activity), is such a posting protected? As explained by Schmidt, employee speech is protected when it implicates the terms and conditions of employment. For example, a car salesman was deemed to be engaging in protected speech when he sarcastically posted pictures and comments about a recent sales event hosted by the dealership because such management decisions impacted commissions.
- Whether the posting is so reckless or malicious as to provide grounds for dismissal notwithstanding the fact that its subject matter would otherwise be legally protected (i.e. the Charlie Sheen rule). On the one hand this stands for the principle that you can’t bad mouth the boss with impunity, but in reviewing the memo you might be surprised to find that the NRLB found it was ok to poke fun at the auto sales event because the employee was merely expressing frustration.
- Finally, even if you are 0-3, the NLRB may still let you get away with firing the employee if you can show that you would have fired him notwithstanding the comments. However, as criminal defense lawyers sometimes say to their clients, don’t start packing your toothbrush based on that argument.
Clearly, these are extremely fact sensitive inquiries. Given the fluidity of the field, you would be well advised to contact your HR professional before firing an employee based their opinions expressed in social networking media. Your reactions may be totally legitimate, but there are legal issues as new as the technology.