Employers Increasingly Turn to Social Media for Unfiltered Information About Their Workforces

Companies that are not using Facebook and other social media to screen hiring candidates will soon be in the minority. The very thoughtful discussion in this article contains survey data indicating that almost 40% of employers are using social media as an aid in hiring. More importantly, almost half of those screening with social media found something on a candidate's site that disqualified her from the position she sought.

50% is a pretty big number. And it's more than twice the number of employers that discovered something that caused them to want to hire a candidate.

Moreover, given the firestorm that is breaking over what several professional football players tweeted about the NFL's first openly homosexual player, many companies view their employees' social media posts as a ticking time bomb of liability. The article notes that healthcare professionals, for example, discussed private patient information on their social websites, sales employees e-mailed or posted customer credit card and account information to sites outside the company firewall, and any Google search will show dozens of examples of inappropriate comments about jobs, bosses, coworkers, company leadership, etc. leading to unwanted publicity and legal exposure.

So the short answer for employers is to have a social media policy that doesn't excite the folks over at the NLRB, but delineates employee responsibilities and company standards. At the same time, the company should have an operations policy that describes for managers how the company social media policy will be monitored and enforced.

Once again, it's good to be an employment lawyer.

The Continuing Regulatory Attack on an Employer's Ability to Conduct Internal Investigations

As I've commented before, federal employment and labor regulatory agencies have been working overtime in the last several years to limit the rights of employers in a variety of settings, and perhaps in no area more than the conduct of internal investigations.

In the latest attack on an employer’s ability to run internal investigations as it sees fit, the NLRB overturned decades of precedent and now requires employers to provide unions with confidential witness statements taken during the course of a disciplinary investigation. Of course, the Obama Board members are fully aware of the chilling affect their decision will have on an employer’s ability to find out what happened in policing its own workplace. In particular, in grievance arbitrations (which  is what this decision pertains to), pre-hearing production of witness statements is likely to diminish rather than bolster the integrity of the grievance and arbitration process because of the potential for witness coercion and intimidation by union co-workers. Moreover, once witnesses being interviewed by the employer understand that the employer will be required to provide their names and statements to the union prior to the hearing, it would not be unusual for witnesses to simply to refuse to make such a statement or to talk to the employer.

The danger of witness intimidation or coercion is not fanciful --- in fact, the Board has long protected statements from witnesses that it collects in an unfair labor practice proceedings, shielding those statements from the employer until the witness actually testifies. Why this same protection should not be extended to employers' witnesses at grievance proceedings is unclear from the Board’s opinion.

Nevertheless, union employers seeking to arbitrate grievance proceedings must now factor into their process that they cannot guarantee witnesses confidentiality prior to the hearing.

The Board’s decision makes it much more difficult for employers now charged with protecting employees and avoiding liability by maintaining workplace safety and identifying and addressing workplace violence, bullying, or sexual or racial harassment.  Revealing witnesses' names and statements to co-workers will likely reduce candid, truthful statements from potential witnesses. Coupled with EEOC’s determination in that a blanket policy prohibiting witnesses from talking to other employees during the pendency of an investigation is per se retaliatory, this NLRB decision further erodes an employer’s ability to talk frankly with its work force to ferret out and correct employee misconduct.

UPDATE:  This decision, along with numerous others, apparently has now been invalidated (pending appeal) by the DC Court of Appeals opinion referenced here.

A First Amendment Right to Fire Complaining Workers?

From a purely legal perspective, it's hard to beat the combination of federal labor law, employment law, and First Amendment rights under the U.S. Constitution, all arising in one case. But that's what happened in California when a group of newspaper employees, dissatisfied with the editorial policies of their boss, begin the process of union organizing to better negotiate with their management over the paper's editorial content. Part of their organizing efforts included encouraging newspaper subscribers to cancel their subscriptions, as well as making complaints about management's actions restricting the content of some of the reporters' and editors' story selections. Most of the active union supporters who did not resign were eventually fired, leading to the the predictable charge before the NLRB. As is typical under this administration, the Board sided with the employees, finding that the employer committed unfair labor practices.


But the Court of Appeals for the District of Columbia, probably the country's premier appellate court for these types of issues, sided with the company. Why it did is a fascinating look at what happens when constitutional rights collide with collective-bargaining rights.

As an initial matter, the Court noted that a newspaper publisher has "absolute discretion to determine the contents of its newspaper" under the First Amendment of the Constitution. Reporters and editors who are not publishers do not have a legitimate employee concern over the subject matter, at least under the National Labor Relations Act.

Given this straightforward preference for First Amendment rights over mere statutory rights, the Court had little trouble striking down the Board's order reinstating the fired employees.  Nor was the Court enamored of the Board's order that the newspaper publish a particular reporter's column (the column had been eliminated at least in part for the reporters prounion activities)  every week for the foreseeable future.  I have difficulty believing that somebody at the Board thought this was appropriate-such an order requires  the Board to become directly involved with the newspaper publisher's exercise of freedom of the press rights. The Court also chided the Board for ignoring the clear coercive effect of its order to reinstate the terminated prounion reporters and editors:  "It sanctions [the publisher] for trying to discipline employees who sought to remain on its payroll and at the same time called on newspaper readers of Santa Barbara to cancel their subscriptions because [the publisher] would not knuckle under to the employee's demands for editorial control."

The case is noteworthy for non-media publishers mainly because it presents a striking example of the Board's overreach under this administration. Given that the Board will have at least four more years of executive protection, we can expect to see this kind of regulatory stretch continue.