LAW OFFICE OF LORI A. GOLDSTEIN, LLC
CLIENT BULLETIN April 2012
EMPLOYERS (UNIONAND NON-UNION) BEWARE:
SOCIAL MEDIA AND EMPLOYEE RIGHTS
Employees are receiving increasing protection from employer involvement in their social media behavior. Employment practices of seeking applicant and employee personal passwords, disciplining or firing employees for Facebook comments, and similar practices and policies are under close scrutiny – from the Senate to the courts to the National Labor Relations Board. In the face of increased enforcement, liability and penalties, employers should revisit their social media policies and practices. This Bulletin also provides employment law updates on transgender discrimination, expanded anti-retaliation protection, and the April 30 NLRB Poster deadline.
Employers at Risk for Seeking Applicant/Employee Passwords
While social media has its benefits – to employees and job applicants, as well as to recruiters and employers – it also presents many challenges, sometimes involving legal violations. The Equal Employment Opportunity Commission, the Department of Justice, and the U.S. Senate, are now reviewing the practice of employers of demanding access to job applicants’ social media and personal email accounts. State legislatures across the nation are considering banning employers from requiring applicants to turn over their Facebook usernames and passwords during the background check.
Not only is privacy an issue, but employers risk actual or perceived discrimination. By accessing a candidate’s personal Facebook page, employers will likely become aware of a candidate’s age, race, disability, and/or religion. Whether or not the protected characteristic impacts the hire decision may be a difficult issue to defend if a decision not to hire is challenged. Requiring the applicant or employee to provide the password could also potentially lead to claims under the Stored Communications Act.
Moreover, if an employer consults social media for some but not all jobs, a negligent hiring claim could result. Checking some candidates can create a duty to check every applicant, and a pattern not followed consistently could evidence discrimination. Finally, the Fair Credit Reporting Act and state background check laws may require explicit disclosures and consent, including for checks through social media.
Whistleblowing: Anti-Retaliation Protection May Extend To Internal Complaints
Employees enjoy anti-retaliation protection under a number of laws. Workers have the right to complain about workplace conditions, such as discrimination, harassment, safety issues or legal violations, whether to supervisors or other management personnel, or to governmental agencies. Laws protect employees from retaliation for complaints, as well as for filing workers compensation claims and for taking legally protected family and medical leave.
The Fair Labor Standards Act (FLSA), which regulates overtime compensation, similarly bars retaliation based on an employee’s FLSA complaint. In a landmark decision last year (Kasten v. Saint-Gobain Performance Plastics Corp.), the U.S. Supreme Court held that an oral complaint could be protected by the FLSA’s anti-retaliation provision. In fact, the Court refused to decide whether the oral complaint had to be made to a government agency or could simply be an internal company complaint (because the employer had not raised the issue on appeal.) At present, however, the majority of federal circuits have included internal complaints in FLSA retaliation protection.
Transgender Employee Protected from Discrimination
Gender discrimination and harassment is protected at federal, state and local levels. However, sexual orientation is not always covered. While many state and local discrimination laws (including Illinois, Chicago and Cook County) extend to sexual orientation, despite the elimination of “Don’t Ask, Don’t’ Tell” in the military, federal discrimination law does not cover sexual orientation.
Recently, a transgender employee successfully sued her employer for discrimination on the basis of her gender non-conformity. Also, the Miss Universe Pageant announced that next year they will allow transgender women to compete.
Most employers have policies and training related to sex-based discrimination and harassment. These are often based on traditional gender roles. Employers should carefully review and account for all statuses that may be protected under applicable law.
NLRB Posting Deadline April 30
The National Labor Relations Board controversial “Notification of Employee Rights” rule has a new deadline. Although portions of the rule were invalidated last month, by April 30, 2012, private employers must post the notice to employees explaining their rights under the National Labor Relations Act.
Please note the following firm name and address changes:
Law Office of Lori A. Goldstein, LLC
I am proud to be a newly elected member of the Board of Directors of the Career Resource Center of Lake County (CRC.) This non-profit re-employment service has assisted more than 11,000 individuals in its 20+-year history. Supported by donors and volunteers, CRC empowers job seekers through education, training, and mentoring. Visit www.careerresourcecenter.org for details.
This bulletin is intended to provide clients and others with general information and is not intended to provide specific legal advice or opinions. For assistance with topics addressed in this bulletin or other workplace issues, please contact Lori Goldstein at (847) 624-6640 or firstname.lastname@example.org. Visit www.lorigoldsteinlaw.com for information about the Law Office of Lori A. Goldstein, LLC.
© 2012 Lori A. Goldstein