BY: JESSICA GUTMAN
As an employer, should you find job applicants on social media? Should you accept friend requests from current employees? How should you handle online and physical harassment claims from employees?
Chris McCarty, attorney at Lewis Thomason, covered these topics and more during a lively, open discussion at the American Marketing Association Knoxville’s April luncheon, titled: “From Friending to Firing: Social Media’s Impact on Employment.”
When searching for job applicants or current employees on social media, McCarty said there are pros, cons and legalities to consider.
“You can find out things you could never ask in an interview, including their age or family status,” he said. “You can also see their social life habits to determine how responsible they are. Anything that is publicly posted is fair game.”
However, searching for an applicant’s social media accounts may also cause negative bias against them. For example, if a job candidate is pregnant and posts that information on social media, an employer may be less likely to hire them given insurance costs and future time off.
When accepting friend requests from employees, McCarty said employers should consider their industry and office culture, and that there are always risks involved. He also informed attendees that as an employer it is illegal in the state of Tennessee to force employees to be friends with you on Facebook.
In regard to employment and social media endorsements, McCarty explained the Federal Trade Commission’s (FTC) endorsement guidelines.
“You can’t have a material connection to what you’re endorsing without disclosing the connection in a clear and conspicuous way,” he said. “Material connections include employment.”
This means employees endorsing their company’s products or services on social media must also disclose that they are employed there. This includes a public employment listing on Facebook or mentioning it in a Twitter or Instagram bio.
He cited an incident in 2017 in which the FTC sent out more than 90 letters to celebrities, athletes and other influencers reminding them to clearly and conspicuously disclose relationships to brands when promoting or endorsing products through social media.
“It’s the same if you work for a hotel and post on Facebook, ‘this the best hotel ever, you should stay here,’” McCarty said. “You must disclose that you work for the hotel because you have a material connection. It’s the law.”
He also said employers must be cognizant of employees’ rights to express themselves online, especially about working conditions.
“Employees are not forbidden from talking publicly about working conditions on social media,” McCarty explained. “This includes pay, benefits, break times and OSHA concerns.”
This protection falls under Section 7 of the National Labor Relations Board (NLRB), which states, “Employees have the right to unionize, to join together to advance their interests as employees, and to refrain from such activity. It is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights.”
Lastly, McCarty covered a popular topic in today’s society: harassment in the workplace. He said to be aware that proper workplace boundaries apply offline and online.
He said, “If someone is uncomfortable in a workplace setting because of something happening online, it cannot be ignored by the company.”
To learn more about these topics, visit FTC.gov or EEOC.gov.
