|Dallas Employment Attorney Billy Hammell quoted in Dallas Business Journal article |
Employment law is atwitter over social media
|July 13, 2012 11:51 pm|
Dallas Business Journal:
The exploding popularity of social media such as Facebook, YouTube, Twitter and LinkedIn continues to create legal pitfalls for employers as they try to navigate the fast-changing online environment, North Texas labor and employment lawyers say.
The NLRB — the federal agency that investigates allegations of company unfair labor practices — recently issued its third in a series of reports that attempt to give employers guidance on how to create legal social media polices, Welock said.
Employers should be careful when crafting social media policies and when disciplining an employee for conduct on Facebook, Twitter and other social media venues, Welock said. The NLRB's reports caution that overly broad policies can violate Section 7 of the National Labor Relations Act, which protects employees' rights related to the workplace, she said. The rules apply to both union and non-union employers.
Perks and pitfalls for employers
Social media policies touch nearly every aspect of labor and employment law, both before and during employment, said Billy E. Hammel, a partner in the Dallas office of national labor and employment law firm Constangy, Brooks & Smith LLP.
"This is a really hot topic," he said.
For example, some companies are requesting job applicants' Facebook information or requiring applicants to "friend" a third party, such as a private investigator, Hammel said. Others are asking applicants to sign in to Facebook to review their profile during the interview process.
Employers do this to combat resume fraud, to look for inappropriate pictures or illegal behavior, and other reasons, he said.
But asking for social media information at the applicant stage is risky for employers, Hammel said. Employers typically cannot ask for an applicant's race, religion, marital status, pregnancy status, sexual orientation or age. Employers who observe an applicant's Facebook profile unnecessarily expose themselves to discrimination claims by applicants who are not hired, he said.
Social media profiles often are highly relevant to company investigations of current employees, he said. Hammel said in his experience, nearly all employers have suspended or fired at least one employee for social media use ranging from Facebook evidence of drug use outside of the workplace to sexual harassment of a coworker.
In May, Maryland became the first state to pass a law prohibiting employers from asking applicants or employees for their social media information, and similar legislation is proposed in several other states, he said.
"I think (requiring social media log-ins of job applicants) will be illegal in dozens of states by the end of the year," Hammel said. Texas currently has no laws addressing the trend, but Hammel said he expects legislation preventing employers from asking applicants for social media information to be filed in the upcoming session, which starts in January.
© 2012 American City Business Journals.
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