On Wednesday, November 12, 2014, NLRB General Counsel Richard Griffin, NLRB Board Member Harry Johnson, and EEOC Commissioner Chai Feldblum participated in a panel discussion that touched upon employers’ use of social media during the hiring process.  Their remarks highlighted the need for employers to be cautious about looking at potential hires’ social media profiles and posts.

The panelists explained that while hiring managers can look at applicants’ personal details or opinions that are posted online, they cannot use those details or opinions when making hiring decisions.  Easy enough right?

Well, that’s where the peril lies.  Take this for an example.  Sally applies for a job at Factory X, which is non-union.  Bob, the hiring manager at Factory X, takes a look at Sally’s Facebook profile before he interviews Sally for the job.  Sally’s profile, which is public, indicates that she is both an avid union supporter and a bird watcher.  During the interview, Bob mentions that he saw on Sally’s Facebook profile that she’s a bird watcher, and that he loves watching birds too.  Bob ultimately decides not to hire Sally because he doesn’t think she has enough experience for the position.  Sally files an unfair labor practice charge with the NLRB, alleging that the reason she wasn’t hired for the job is because she’s a union supporter.  Factory X may have a difficult time proving that Sally’s union support didn’t have anything to do with her not getting the job.

Indeed, during the panel, Griffin explained that “The issue is obviously going to be whether the person who didn’t get the job . . . suspects the reason he didn’t get the job [was because he was pro-union] and files [a] charge.”

What if Bob had instead asked another manager to search Sally’s social media presence and “sanitize” the information (i.e., not tell him anything about whether or not Sally is a union supporter) before providing it to him?  Member Johnson addressed this hypothetical during the panel, explaining that the standard for allowing knowledge to be imputed among different supervisors is very liberal under current interpretations of the National Labor Relations Act, meaning that if management were to do that, it would have to make sure that the process is “very hermetically sealed.”

The panelists also noted that employers must be cautious in monitoring current employees’ social media activity and their reactions to it.  Griffin observed that “very few people engage in protected and concerted activity about the terms and conditions of their employment in order to praise them,” that criticism and dissatisfaction are “grist for the mill” of the NLRA, and that if an employer takes the position that employees can’t be critical, the employer is “going to run afoul of people’s right to be critical.” 

The moral of the story: employers should tread lightly when considering whether to take a look at applicants’ or employees’ social media activity, and even more lightly when considering whether to act on it.