Defending The Digital Workplace

An ebusinesscounsel.com publication

Germany Proposes Ban on Employers using Facebook to Screen Applicants

A proposed law in Germany may make it illegal for employers to check out prospective job candidates on Facebook and similar non-career focused social networks, according to TechCrunch.

The proposed law, however, would not make it illegal to “google” or otherwise conduct Internet searches of applicants – but employers would be required to disregard information that is either too old or outside of a candidate’s control. Further, social networks focused on professional purposes, e.g., LinkedIn, would be permissible.

I am more of an expert on German beer than German law. And I have not reviewed this particular proposed German law so I am not in a position to intelligently speak on whether or how practical this “Anti-Facebook” law would be once implemented.

But the genesis for this “Anti-Facebook” law does provide a good off-ramp for US employers to address legal risks associated with using social media to research applicants.

Among those risks, an employer may learn about information that may later become a cornerstone in a discrimination lawsuit. Consider if a decision-maker’s social media research revealed that an applicant is in a protected class under federal or state laws. Such information may be disclosed through photos showing a person’s race, information about a person’s religious affiliations, or that an applicant is pregnant. Whether this information was a determining factor in the adverse hiring decision will be answered against the factual backdrop  that the employer checked the applicant’s profile and was therefore aware of the particular fact creating the protected class under state for federal law. Now this knowledge, by itself, may not be enough to carry the day in regard to an employment claim, but it is a tangible piece of evidence a plaintiff’s lawyer will certainly point to in supporting that claim.

Or an employer – union and non-union – may open itself up to an unfair labor practice claim. Specifically, Section 7 of the National Labor Relations Act (NLRA) protects employees (unionized and non-unionized workplaces), who engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Such activities include the right to discuss terms and conditions of employment, and criticizing their employers when communicating with co-workers and third parties. In the social media context, courts have held that employee comments critical of their employers made through social media channels while discussing union activity may trigger concerted activity protections. See Konop v. Hawaiian Airlines, Inc., (2002) (comment critical of employer’s union negotiation tactics held protected).

The Take-away for Employers: Implement a Social Media Plan & Engage Employees to Make sure it is Followed

The preceding risks are only a few of many examples of risks that employers should consider in assessing the benefits and burdens of social networking sites as they relate to employees. For a more in-depth analysis of these risks, feel free to contact me. Also click here (free registration required) for a free copy of a  social media policy. Click here for a prior post about obtaining employee buy-in when it comes to implementing your social media policy. I am also curious to know how many employers implement a “social media” protocol into their hiring and recruiting policies. Thanks for your input.

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Written by Jason Shinn

August 23, 2010 at 9:53 am

Posted in Uncategorized

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