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By Joe G. Jarret
As the savvy government HR manager is aware, public employers are increasingly expanding their recruitment efforts by looking beyond the printed résumés submitted by prospective employees. Thanks to social media, employers have the ability to obtain information about job applicants that was either difficult to obtain or patently unavailable just a couple of years ago. This information has also created a hot bed of litigation founded in the improper use of information obtained by employers on social networking sites. This often manifests itself when employers rely upon misinformation or inaccurate information when making hiring, firing or disciplinary decisions. Such scenarios often lead to claims or lawsuits founded in discrimination, wrongful discharge, breach of employment contract, etc., regardless if you are operating in an at-will employment state.
State of the Law
As social networking and media sites continue to explode onto the scene at a dizzying rate, most of our state legislatures and courts at the federal and state levels, have not kept apace. This phenomena begs the question: are public employers putting their entities at risk by taking advantage of the wealth of information now available at the stroke of a computer key? This is a troubling dilemma indeed, considering the fact that the majority of state legislative bodies have been slow to enact legislation that addresses social media from an HR, workplace context. The same holds true for the federal government. Last year, the United States Congress reintroduced (it was previously introduced in 2012) the Social Networking Online Protection Act, more commonly known as SNOPA. SNOPA is designed, in pertinent part, to prohibit employers from:
The bill is currently languishing in committee and, it appears, will be there for some time. To examine the full text of the bill, go to www.govtrack.us/congress/bills.
Although the National Labor Relations Board (NLRB) has begun to acknowledge the various labor and employment issues that can arise as a result of an increased use of social media in the workplace, their primary concerns continue to be:
Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees. For more information, check out the NLRB fact sheet, “NLRB and Social Media.”
Before determining whether to look at social media as part of the hiring process, the HR manager must remain cognizant of the fact that the laws surrounding this issue are state-specific. For instance, as of 2012, only California, Illinois, Maryland and Michigan had laws on the books prohibiting or limiting employers from asking employees for social media account information. It is important to note, however, that similar bills are pending in Delaware, Hawaii, Kansas, Maine, Nebraska, New Hampshire, New Jersey, New York, Oregon, Texas, Utah, Vermont and Washington. In 2013, Philadelphia became the first U.S. city to consider a similar prohibition. Needless to say, each of the aforementioned laws are unique. Consequently, although social media has proven to be a valuable tool for public sector HR managers, the pitfalls may outweigh the benefits, depending upon whether your state has established prohibitions against such usage.
Social Media Policies
Bonnie Jones, a consultant with the University of Tennessee, Municipal Technical Advisory Service, has published widely on the topic of the impact of social media on HR. Ms. Jones suggests that, in the absence of a state statute or court permitting otherwise, that public employers:
Social media can prove to be an invaluable recruitment tool, provided the laws of your state have not banned its use. The HR manager is well-advised to confer with legal counsel prior taking advantage of the various social media websites out there. Further, your entity’s attorney is well-position to assist you in drafting and implementing a social media policy that can pass legal muster. In so doing, you go a long way in protecting your entity from lawsuits founded in labor and employment discrimination.
Author: Joseph G. Jarret is a public sector manager, attorney and mediator who lectures on behalf of the master of public policy and administration program in the Department of Political Science at the University of Tennessee, Knoxville. He is the 2013 president of the E. Tennessee Chapter of ASPA.