Omg! Social Media's Impact on the Workplace

• Jurisdiction: United States,Federal
• Citation: Vol. 19 No. 03
• Publication year: 2015

OMG! Social Media's Impact on the Workplace¹

by Jordan M. Odo

If you have ever struggled to communicate your thoughts in 140 characters or less or contemplated a witty hash-tag, you are not alone. Every day, there are 500 million Tweets, 1.6 billion "likes" on Instagram, and over 15.5 mil lion professionally-oriented searches on Linkedln.² Additionally, Facebook has more than 1.3 billion users—half of whom have more than 200 "friends" in their network.³ In the United States, it is estimated that 74% of adult internet users have a presence on at least one social networking website.⁴

Not surprisingly, the biggest social media users are individuals between 18 and 29 years of age.⁵ These tech-savvy "Millennials" are entering the workforce in droves⁶ and changing the ways in which companies interact with consumers, and employers relate to their employees. In this day and age, almost every Fortune 500 company uses social media⁷ in hopes of going viral and connecting with ordinary consumers. Additionally, a majority of companies use or plan to use social media to recruit the brightest and most talented employees.⁸

As the old adage goes, nothing good comes without a price. Today's exec utives are quickly learning just how uncontrollable and dangerous social media can be to a company's reputation. Indeed, a prominent Hawaii chef noted, "Social media might kill some very young and creative chefs . . . . If you get poor reviews on Yelp or Open Table, you have to start to worry about your future."⁹ The potential damage to a company's reputation and other negative consequences (e.g., disclosure of confidential information and "corporate identity theft") have caused 84% of executives to say they were "concerned" with social media's effect on their businesses.¹⁰ Notwithstanding, only 33% of the executives surveyed said they had a social media policy in place to mitigate their concerns.¹¹

Social media is also tremendously redefining the workplace. While there were once ways to connect to old college buddies and distant relatives, websites like Facebook and Twitter have now blurred the lines between work and play. According to a 2012 survey, 80% of social media users between 18 and 29 years of age had at least one coworker as a "friend," and, on average, 16 coworkers as "friends."¹² Another survey revealed that half of all senior managers in the U.S. are comfortable with "friending" their coworkers on Facebook.¹³ Because social media has made it easy for coworkers to communicate with each other outside of business hours and away from the four walls of their offices, conversations that have traditionally been confined to the water cooler are now occurring over social media. Essentially, today's workplace can be anywhere a worker brings his or her cellphone or laptop, 24 hours a day, 7 days a week, 365 days a year.

As will be discussed below, social media's expansion of the workplace has greatly exacerbated issues of privacy, discrimination, harassment, and bullying. Meanwhile, the law in these areas is largely underdeveloped and ambiguous, leaving employees and employers uncertain about their rights and obligations.

This article will cover three major areas where social media intersects with the workplace—hiring and recruiting, "friending" coworkers and subordinates, and workplace investigations—and will examine the National Labor Relations Board's ("NLRB") stance on social media policies.

Hiring and Recruiting

In today's competitive job market, employers cannot expect that job candidates will voluntarily disclose their bad qualities or the poor decisions they made in college or with previous employers. Indeed, job candidates are taught to spin the dreaded question about their weaknesses into a positive one (e.g., "my weakness is that I work too hard," or "I am a perfectionist") and to highlight only good experiences. Some job candidates even outright lie in their application materials or interviews. As a result, employers are often forced to turn to other sources to screen job candidates.

Today, background checks of potential employees are common. As part of the hiring process, many employers contract with consumer reporting agencies to run background checks on job candidates.¹⁴ These background checks, however, are traditionally limited to information about a job candidate's criminal, educational, and credit history, and they do not necessarily inform the hiring manager as to whether the job candidate is professional and ethical or whether the job candidate will fit in with the culture of the company. That is where social media most often comes into play.

Unlike resumes, interviews, and traditional background checks, social media provides employers a more candid and honest snapshot of a job candidate's interests, values, and communication skills. Employers may review social media for red flags, including whether the job candidate has posted provocative pictures, information about current drug abuse, negative comments about past employers, or discriminatory comments related to race, sex, or religion.¹⁵ Such information could be used to avoid hiring a person the employer believes will be unprofessional or problematic in the workplace, saving the employer time and resources and, perhaps, even helping to guard against a negligent hiring and retention claim.¹⁶

Nonetheless, although such information may be useful at the hiring stage, employers should exercise caution because social media can reveal more about a job candidate than the employer needs or cares to know. By looking at a picture on Facebook or Instagram, the hiring manager may learn of the job candidate's race, color, and gender. The hiring manager can also learn about a host of other protected class information by reviewing the job candidate's "About Me" section, "status updates," and "likes." For example, "the caption to a photo of [the job candidate's] completing the 'Race for the Cure' in memory of her sister 'who lost her battle with this horrible disease'" may show certain genetic information (i.e., that the individual has a family history of breast cancer).¹⁷ Knowledge of such information can be problematic for an employer, for if the hiring manager is aware of the job candidate's race, sex, or other protected classes and declines to hire the individual or steers the individual into a less favorable job classification, the employer may face claims under Title VII of the Civil Rights Act of 1964 ("Title VII")¹⁸ and/or other state and federal employment discrimination laws¹⁹ if the job candidate believes there is a nexus between loss of the job opportunity and protected status.

Employers' use of social media during the hiring process has caught the attention of the Equal Employment Opportunity Commission ("EEOC"). In a March 2014 meeting, the EEOC expressed concerns about social media being used as a "screening tool to screen out applicants for illegal reasons."²⁰ One EEOC Commissioner explained by way of a hypothetical, "[A]n employer cannot use the social media to discover that a person has an illness, therefore they don't want to hire them; or their family has an illness, therefore they don't want to hire them; or any of the other areas that Title VII protects."²¹

Employers who rely heavily on LinkedIn and other social media websites to recruit passive candidates should also exercise caution. In Reese v. Department of the Interior,²² a 61-year-old job applicant, who was not selected for a position, pursued an age discrimination claim, alleging that the employer's use of Facebook for recruiting purposes demonstrated the employer's desire to attract younger applicants. Specifically, the applicant argued that older workers were at a disadvantage because they used computers less often than younger workers. Although the EEOC rejected the claim on the grounds that the applicant did not present any evidence beyond mere conclusory assertions, the Reese case is an eye-opener and serves as a reminder of the value in using multiple tools for recruiting.

"Friending" Coworkers and Subordinates

As discussed above, employees are increasingly "friending" their coworkers on social media, which creates problems for employers seeking to maintain safe and harassment-free workplaces. In a study on online "harassment," 73% of adult internet users reported seeing someone being harassed online in some way, and 40% reported personally experiencing such harassment.²³ The problem is that people are "less inhibited online because [they] don't... see the reaction of the person [they're] addressing."²⁴

Online harassment can lead to discrimination claims if employers are not careful. Under Title VII and similar anti-discrimination laws, verbal and written conduct related to a protected status may be actionable if the conduct is unwelcome and sufficiently severe or pervasive to alter the conditions of employment and create an abusive or hostile work environment.²⁵ In most cases, the harassing conduct occurs on the worksite during working hours, but, in some situations, courts have allowed employees to pursue harassment claims arising from conduct occurring outside working hours and away from the worksite if it affects the working environment.²⁶ Such off-duty harassment claims could increase because communications between coworkers over social media are not limited to instances when the individuals are in the same room or on a telephone call.

In many cases, the employer is not liable for harassment between coworkers. An employer will be responsible for such harassment only if it knew or should have known of the conduct and failed to take "immediate and appropriate corrective action."²⁷To avoid a harassment claim, employers should consider adopting a social media policy that prohibits harassment via social media. It is important to note, as discussed below in greater depth, that the policy must be narrowly tailored to cover unlawful harassment and not to restrict protected, concerted...