Privacy & Social Media

By Erin Dougherty Foley and Lily Strumwasser

A recent study commissioned by Microsoft Corporation found that nearly 80 percent of individuals hiring and recruiting use the Internet to investigate candidates. A major news network indicated that more than 77 percent of employers find information about candidates online, and 35 percent have dismissed candidates based on these findings. At first blush, looking at an applicant’s social media content makes sense – after all, with just a few clicks of the mouse you can find out all sorts of revealing information about job applicants. However, there are also several legal risks associated with viewing applicants’ social media profiles.
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By Uma Chandrasekaran and Annette Kim

Employers may need to tweak their workplace investigation policies in order keep complaints of twerking out of the workplace. Recent decisions and guidance from the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) have spotlighted the need for employers to develop  narrow policies while maintaining flexibility to address workplace-related concerns, including harassment on social media. 

As we have blogged before here and here, the NLRB has actively scrutinized and stricken down employer social media policies as being overbroad and having a “chilling” effect on employees’ rights to engage in activity protected by Section 7 of the National Labor Relations Act (“NLRA”). Despite the NLRB’s decisions, employers cannot afford to turn a blind eye to their employees’ social media activities altogether, because social media harassment can, in certain circumstances, support Title VII harassment claims.

Notably, the First, Second, Seventh, Eighth and Ninth federal circuit courts currently allow an employee’s “off-the-clock” social media conduct to be considered as part of the “totality of the circumstances” to show a hostile work environment harassment claim under Title VII. 
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By:  Jacob Oslick

As we recently blogged about HERE, the National Labor Relations Board has taken a strong stand against what it considers overbroad social media policies.  Among other things, the NLRB contends that company social media policies risk chilling employees’ rights to discuss their wages or other “concerted protected activity.” 

The NLRB is

By: Bryan Bienias

The paradox of America’s fascination with social networking has always existed at the crossroads where shameless exhibitionism collides with the fundamental need for personal privacy. People yearn to share the details of their “private” lives with the world . . . well, maybe only with some of the world, and only on