The technological advances of the last decade have had a seismic impact on our society, and are perhaps no more deeply felt than in the workplace. These advances have allowed offices to go paperless and enable immediate communication with colleagues across the globe. Yet with new technology come new challenges for both employers and employees—especially when it comes to social media.
Employers often use social media to attract and vet potential employees. But they must be cautious about ensuring their social media practices do not discriminate against employees in protected classes. A labor union representing 700,000 media workers filed a class-action lawsuit in December 2017 based on job postings that allegedly discriminated against workers based on their age. The workers cited Amazon, TMobile, and Facebook among the companies they believe have unlawfully targeted a younger demographic through social media, putting older workers at a disadvantage relative to job prospects. The use of social sites must also be prudently handled during the interviewing and onboarding stages. (You can read more about the use of social media in the interviewing process here.)
Employers also have to be careful about disciplining employees for social media postings that discuss conditions in the workplace. The National Labor Relations Act protects certain “concerted activity” of employees related to their working conditions, and the National Labor Relations Board has ruled that social media posts made by employees can qualify as protected activity.
Electronic devices also present special challenges. The widespread use of personal smartphones has essentially put a computer in the pocket of every employee. More and more, companies are implementing BYOD or “Bring Your Own Device” policies that allow employees to connect their personal devices to their employer’s network. Doing so, however, creates risk. An employee might acquire a substantial amount of the employer’s information on a personal device, which can create disclosure issues and other concerns when an employee separates. And for employers, they must be careful not to access or store an employee’s personal information.
Employees, for their part, must be careful about what their social media and online image conveys. An employer could always be watching. In fact, there are several public examples of employees getting into trouble based on social media posts or poor behavior that was recorded and then disseminated via social media.
Additionally, increased connectivity can create wage and hour issues. Employees must be paid for all hours worked, whether on site or remotely, and employees are required to receive overtime pay under federal and state laws. Yet employers must have systems in place to monitor time spent “on the job” or rely on the honor system for self-reporting one’s hours. Lastly, new wage laws require employers to reimburse their employees for using personal devices for company purposes. Because of the significant penalties imposed by such laws, employers should become aware of these regulations and ensure their compliance with them.
Experienced employment attorneys can be effective in helping employers determine the best social media and technology policies for their unique workplace and company culture. Similarly, an employment attorney can help employees navigate these issues, especially when they result in discipline or termination. Contact an experienced employment law attorney today if you have questions or concerns about social media and technology in the workplace.