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Posted: December 27, 2011

The evolving electronic workplace: Part 1

Minimize risks, maximize rewards

Ruth Mackey and Todd Fredrickson

As electronic technology continues to advance, its role in the workplace continues to grow, changing both the nature of the workplace and the employer-employee relationship. This article will examine and provide solutions to some of the common dilemmas facing employers on the "electronic frontier" in areas such as social media, GPS tracking, video surveillance, monitoring of communications and Electronically Stored Information (ESI).
Social Media

It is estimated that Facebook has over 500 million users worldwide. And, according to a survey, nearly half (45 percent) of U.S. employers report using social networking sites to dig up information about job candidates.

According to another recent poll, more than 50 percent of employers believe they have a right to monitor employee postings on social networking websites. At the same time, 60 percent of employees surveyed believe their online activities are none of their employer's business.

So where does the truth lie? Clearly employees don't have the right to say anything they like on social media sites, but employers should be cognizant of the following issues with regard to social media in the workplace or in the hiring process:

• Hiring practices that rely heavily on recruiting through social media sites or that require screening through these sites have the potential to give rise to claims of discrimination since individual "profiles" may list a person's race, religion, disability, sexual orientation and other protected categories. Remember that an important defense against a failure to hire claim is actual ignorance of protected characteristics.
• Employers should not use techniques, such as creating "dummy" profiles, to obtain access to information that an applicant has taken steps to make private.
• State laws may prohibit employers from taking an adverse employment action based on information suggesting that applicants were engaged in lawful conduct during non-working hours, such as smoking, drinking alcohol, or engaging in consensual sexual activities.
• Managers should be wary of "friending" employees on social networking sites. Be careful not to reveal anything online that you wouldn't say or post in the break room. Remember that a post to a social networking page could become part of harassment or discrimination claim even though it may appear on a "personal" page. Use privacy controls to manage the flow of information.
• NLRB protections: Recently the General Counsel of the National Labor Relations Board (NLRB) issued a complaint alleging that one of an employer's union-represented employees was unlawfully fired after criticizing her supervisor on Facebook . The complaint also alleged, among other things, that the company's blogging and Internet policy "interfere[d] with, restrain[ed], and coerce[d]" employees' NLRA rights. An administrative law judge was scheduled to hear the complaint, but a settlement was reached. The law protects an employee's right to act in concert with one or more other employees in furtherance of a common concern regarding any term or condition of employment.
• Employers that rely on information gathered from social media websites should be sure to obtain this information in a lawful manner.

The Stored Communications Act is noteworthy in that it is a Federal statute prohibiting intentional, unauthorized access to private electronic communications such as Facebook or Hotmail. The Act creates a privacy expectation in private electronic communications. In a recent case management requested access to a password-protected forum for employees. When employees were terminated because of content found on the blog, a jury found in favor of the employees.

Facebook vs. LinkedIn
Although Facebook is very popular, employers should consider searching only the LinkedIn social network. LinkedIn is a site intended for professional networking and it displays users' education and experience and may have professional references. LinkedIn also tends to be less "gossipy" than Facebook.

Social networking: Employer Pitfalls
When using social media as a screening tool, employers should be consistent: If you check any candidates, check all candidates. And if a search reveals information that played a part in not hiring, keep a copy of information and consider giving the candidate an opportunity to address the information.

To be sure, there is no shortage of "cringeworthy" material and "Facebook failures" out there. These include embarrassing photos and YouTube videos; rants about supervisors, employers, co-workers and customers; and controversial commentary about politics, religion and other incendiary topics.
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Ruth Mackey is an Associate in the Denver office of Fisher & Phillips LLP and Todd Fredrickson is the firm’s Denver office Managing Partner.They practice exclusively in the areas of labor and employment law on behalf of employers. Contact them at 303-218-3650 or at tfredrickson@laborlawyers.comor   

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