the clock.” He claimed the personal data
assistants, such as BlackBerrys, smart
phones, cell phones, pagers and other communication devices, were provided to
maintenance employees and they were
required to be on-call 24 hours a day, seven
days a week. The parties—including 12
plaintiffs—ultimately entered into a confidential settlement agreement. 21 One tough
lesson in all of this is, even if the company
proves that it is “right,” it can be expensive
to get to that determination in the absence
of clear company policies defining work
rules, duties and hours.
What I Don’t Know Can’t Hurt Me
Social networking sites can be used to identify and research applicants, but employing
a practice of perusing applicants online can
give rise to potential discrimination claims.
If a human resources manager researches a
candidate and accesses the applicant’s
INTERNET 1989
INTERNET 1990s
• Microsoft Office
is first released
by Microsoft.
• CompuServe is
the first online
service to
offer Internet
connectivity.
In 1990,
ARPANET ceases
to exist (it was
made obsolete
by NSFNET).
Twitter or Facebook page, it is entirely possible that information about the applicant’s
race, religion or disability could be discovered. Everyone knows that information
about a person’s protected class cannot be
considered as part of the hiring process,
but how do you prove you did not consider such information if you accessed sites
referencing it during your pre-hiring online
investigation?
The answer: You can certainly present
strong evidence in litigation that such
information was not considered, but it is
costly and much more difficult to get a
claim resolved on summary judgment
when you have accessed information
regarding an applicant’s protected class.
Even if an employer does not consider anything about an applicant’s protected class,
it is more difficult to rebut an allegation
once an employer has the knowledge.
The takeaway point here is that companies need to be careful when using social
media in recruiting employees and
researching applicants. What is learned cannot be unlearned. In a recent survey by
CareerBuilder, approximately 37 percent of
companies indicated they use social networking sites to research job candidates. 22
Clearly some companies are finding value
in continuing such a practice, but the risks
should not be ignored. Each company needs
to weigh the risks as to whether it is worth
it to that particular company to research an
individual online. 23
Moreover, when we typically consider
discrimination claims brought as the result
of information ascertained from social net-
working sites, we are referring to disparate
treatment claims—meaning the allegation is
that a company intentionally discriminated
against a person due to his or her protected
class. However, a trial attorney with the
Equal Employment Opportunity Commis-
sion’s Washington, D.C., field office
recently advanced an interesting argument
that there could be disparate impact claims
brought due to the use of social media
in recruiting. 24 A disparate impact discrimi-
nation claim refers to a neutral policy or
practice that nonetheless has an adverse
impact on a particular protected class,
such as individuals over age 40. Because
Facebook users, for example, are dispropor-
tionately under the age of 40, if a company
recruits exclusively or primarily through
social media, its practice may have a dis-
parate impact on workers over 40. Even the
EEOC trial attorney acknowledged that
this is a claim he has not yet seen, but point-
ed out that companies need to think about
potential practices that could give rise to
such claims.
We Are Watching You
Employee privacy rights must also be
addressed so that an employee does not
have a legitimate expectation of privacy on
his or her computer or work devices, especially if the company has a “bring your own
device” policy. 25 It is important to note at
the outset who owns and has a right to
view/use information, communications,
and even accounts—such as LinkedIn.
endnotes
1. Nicholas Carlson, Yahoo
Employee Twitters Through
Layoff (Dec. 10, 2008),
www.businessinsider.com/
2008/12/twittering-the-
yahoo-layoffs-yhoo (last
visited Dec. 12, 2012).
2. Robert Frank, CEO to
Workers: I May Fire You if
Obama Wins (Oct. 10, 2012),
http://finance.yahoo.com/ne
ws/ceo-workers-youll-likely-
fired-131640914.html.
3. Dan Haggerty, Fast Food
Workers Fired for Standing
on Lettuce (July 18, 2012),
www.azfamily.com/news/
Fast-food-workers-fired-for-
standing-on-lettuce-
162961466.html (last visited
Dec. 28, 2012). Note: Yes,
the employee and manager
on duty were terminated.
4. 29 U.S.C. § 157.
5. Hispanics United of Buffalo,
Inc. and Carlos Ortiz, Case
No. 03-CA-027872 (NLRB
Decision and Order, Dec. 14,
2012).
6. Hispanics United of Buffalo,
Inc. and Carlos Ortiz, Case
No. 03-CA-027872 (NLRB
Administrative Law Judge
Decision at 4-6, Sept. 2,
2011).
7. Id. at 6.
8. Hispanics United of Buffalo,
Inc. and Carlos Ortiz, Case
No. 03-CA-027872 (NLRB
Decision and Order at 1-4,
Dec. 14, 2012).
9. Id. at 3.
10. NLRB, Acting General
Counsel Releases Report on
Employer Social Media Policies
(May 30, 2012), see
Operations Management
Memo, 22-24,
http://nlrb.gov/news/
acting-general-counsel-releases-report-employer-social-media-policies (last visited Dec. 28,
2012).
11. Id.
12. Karl Knauz Motors, Case No. 13-
CA-46452, (NLRB Administrative
Law Judge Decision, Sept. 28, 2011;
NLRB Decision and Order, Sept.
28, 2012), available at
www.nlrb.gov/category/case-
number/13-ca-046452.
13. See Knauz ALJ Decision at 3-4.
14. Id. at 4.
15. See Knauz Board Decision and
Order at 10-12 (holding the comments were “posted solely by [the
former employee], apparently as a
lark, without any discussion with any
other employee of the Respondent,
and had no connection to any of the
employee’s terms and conditions of
employment”).
