Winter 2014Every municipal employer knows about social media such as Facebook, Twitter, Tumblr, etcetera and may even know how to use them. But do they understand the legal liability that can arise in the employment relationship when information from social media is misused? This article will provide a brief overview of the use of social media and the issues that can arise in the hiring, disciplining, or termination of municipal employees.
Municipal employers are generally aware of their employment obligations and, where the law is well-developed and clear, do an admirable job in managing their workforce accordingly. But new technology and unsettled law can be a breeding ground for employment-related liability. Such is the case with the use of social media in the employment relationship.
Most municipalities today have an on-line presence in the form of a city website; some even have Linked In and Facebook pages devoted to the city and its staff. But municipal employees also have an on-line presence. It is the use and posting of material on municipal and/or personal networking sites that can become problematic in the employment context.
The use of material discovered or reviewed on social networking sites creates a liability for a city when the use of such information is contrary to other well-established laws, including laws prohibiting discrimination and retaliation. This can happen when information obtained from such sites includes an individual’s race, gender, age, national origin, or other protected status and such information is then used by the employer to make employment decisions regarding hiring, promotion, compensation, and termination.
Both federal and state agencies have begun to closely scrutinize social media and its use in the workplace. For example, the Equal Employment Opportunity Commission (“EEOC”) recently held a Social Media Commission meeting to address the growing use of social media in employment. The National Labor Relations Board (“NLRB”) (municipalities are not subject to the NLRB) has issued several memoranda illustrating the do’s and don’ts when accessing and using social media, including statements in employee handbooks or policies. Oregon addressed the use of social media in the employment relationship in the 2013 legislative session with the passage of HB 2654 (ORS 659A.330), which went into effect January 1, 2014.
HB 2654 was in response to news reports of employers requiring job applicants to provide access (read “passwords”) to networking sites so that the hiring employer could review posted material. If the person refused to provide the password then the applicant may have been asked to allow the employer representative to observe the applicant accessing their network sites, a process known as “shoulder surfing.” The employer then used any information reviewed to determine eligibility for hiring. HB 2654 was made a part of the ORS 659A series of unlawful employment practices and prohibits an employer from:
- Requiring or requesting an employee or applicant to disclose their username and password;
- Compelling an employee or applicant to “friend” the boss; and
- Compelling an employee or applicant to access the social media account in the presence of the employer.
But it is not just the recruitment and hiring of employees that is problematic. Problems can also arise for current employees when the municipality learns of derogatory information, pictures implicating wrong doing, or other material putting the city in a bad light. Consider the female police officer or male fireman that poses on the hood of the police cruiser or in front of the fire engine in a sexually provocative manner and posts the picture to their respective Facebook pages. When a co-worker sees the post, they begin circulating it within the community and then the city learns of the picture. Can the city use such information? The short answer is yes, if they have not requested either employee to provide access or compelled the production of the offending picture. The co-worker who voluntarily brings it to the attention of the city may do so and the city may use the information for purposes of determining whether city or employee policies have been violated.
Remember, HB 2654 does not prevent an employer from using information found on social media sites that comes to it from sources that are authorized to receive such information. Employers simply can’t require, request, or compel an individual to grant access or disclose passwords to social media sites. Before a municipality relies on the use of such information, they would be wise to clearly establish the manner and method by which the social media information came to its attention and that it was obtained without violation of the Oregon statute, as well as any other laws or regulations.
What should a city do? First, understand the law, including its exceptions. Second, conduct appropriate training for all supervisors and managers on the new law since they are the eyes and ears of the organization and first line of defense. Finally, the city should not shy away from using appropriately obtained social media information that it would reasonably be expected to know about if it had conducted appropriate background checks to avoid claims of negligent hiring.