The National Labor Relations Board (NLRB) came down with a decision recently that tossed out Costco's social media policy, which stated that an employee could not go on any social media sites and damage the reputation of the company or damage the reputation of its employees or management of the company.
This decision equated to preventing workers from discussing conditions at the workplace which has been a long-standing principal in employment law, says attorney Wendi Lazar of Outten and Golden, LLP, an employment law firm in New York, adding that these are "associational rights" that workers have, akin to "water cooler" discussions. Freedom of expression and other associational freedoms are what we hold so true in our constitution, Lazar says.
On the other hand, other decisions have come down recently that draw a fine, yet definitive line that any social comments are not okay. Most recently, says Lazar, there was a decision made by the NLRB holding an administrative law judge to a decision, where he found an employee at a BMW dealership that showed terrible pictures of an accident on Facebook that involved the dealership in a negative way. The NLRB said that this was not okay and that it was not protected speech, adds Lazar.
Over 50% of recruiters and human resource professionals are looking at social media data to assess someone's hirability, according to Lazar, and being aware of that is important, she adds. Employers can get into deep trouble if they use information found on a social media site not to hire an employee. If a hiring decision is based on any protected civil rights, such as if the person is part of a certain ethnicity or race or is disabled, it could be terrible liability for the employer, says Lazar.
Lazar says that an ancillary issue is at the workplace. If someone is terminated because an employer had access to a social media site where the employee was associated with a particular ethnic or religious group, there is increased civil liability for the employer.
When advising employees who come in when filing a suit, Lazar tells them to be very cautious while on Facebook and to check their privacy settings and that no third parties have any access. She also tells them to be very conservative while communicating on Facebook. Additionally, when advising younger people who are entering the job market, Lazar recommends they be very careful what they do on Facebook and other social media sites.