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Social media legal pitfalls abound

Employers seek aid with challenges

By Gigi Wood

IOWA CITY – Much of the business-related advice on social media centers on employees cleaning up their image and eliminating party photos from their profile when applying for jobs.

There are social media issues for employers to be concerned about, as well. Joseph Younker, an attorney with Bradley & Riley, discussed employer-related social media issues at a lunch-and-learn June 8 at Iowa City Area Development Group’s office in downtown Iowa City.

He spoke about social media considerations during hiring and firing, creating social media policies for the workplace and First Amendment considerations for public-sector employers. Mr. Younker practices real estate, business and environmental law, and said social media is becoming a topic of concern among clients of Bradley & Riley’s labor and employment practice group.

“It comes up when drafting employee handbooks – what should employers consider when they hire people, what they need to consider when they’re disciplining people or terminating an employee, so it’s really something that comes up and a lot of our attorneys deal with,” he said. “We have clients who need social media policies and clients who want to know what they need to be considering in the hiring process, what should they be doing. The courts are starting to catch up, too. We’re starting to get advisory memos from various agencies or court opinions that deal with these issues.”

Social media sites can leave employers vulnerable to discrimination cases, he said. For example, while sifting through resumes when filling positions, it can be risky for employers to look up applicants’ Facebook pages.

Facebook profiles often list affiliations and activities connected to gender, race, religion and other protected classes. Because it does so, employers need to be careful what information they view when deciding who to hire. Applicants could potentially file a discrimination suit against a company if they know employers learned certain information, such as race or religion, on Facebook.

“Some of the things employers need to be careful of are, federal and state law prohibit against discrimination based on certain factors, things like race, religion, gender, disability and those are things that employers know not to ask about in the interview process,” Mr. Younker said. “But what happens when you check out someone’s Facebook page and then you see their picture and maybe you get information about a protected class. If you then decide not to offer the person the job, you might face a discrimination claim then.”

Employers often ask what they can do to avoid exposure to that liability, he said.

“The employer might have a legitimate reason for not choosing that candidate, but it’s hard to say you didn’t rely on some of that protected class information when you’ve already seen it,” he said.

Companies are also concerned about whether they are liable for what employees post on their social media sites and what disciplinary actions are legally available. For example, Congress operates with a set of ethics its members are expected to abide by. In the case of Rep. Anthony Weiner of New York posting inappropriate photos of himself to the Internet, there could be ways for Congressional Ethics Committee to discipline him for violating its ethical code.

“It’s outside of the workplace, but Congress, both houses have codes of ethics, and one of the rules is you’re not supposed to do something that is ‘conduct unbecoming,’” Mr. Younker said. “With most labor and employment issues, there’s a lot of grey area. And it kind of depends on where it was posted, what’s the post about.”

Whether the social media site accounts are registered with employer login information and what employees are Tweeting about need to be considered. Public-sector employers need to be cognizant of employee and customer First Amendment rights when establishing social media policies and considering disciplinary actions.

“If a private employer has a blog and somebody posts a comment, that private employer can have an internal policy and decide what kinds of things it wants to remove,” he said. “A public employer, it’s a little more complicated because the person who made that post has some First Amendment rights. So the public employer needs to make sure they’re not running afoul of First Amendment issues.”

Employers also need to make sure nondisclosure statements and proprietary policies for employees cover social media. Brand protection, advertising and marketing liability issues can also surface for employers dealing with social media sites.

“These are not new issues. With social media, they’re just presenting in different ways and employers need to be aware of that,” Mr. Younker said.

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