Sales Strategy
The Luxury Market Is Changing. How Do You Change With It? Part 2: Social Media, Hiring, And Firing | November 11, 2015 (0 comments)
While every year brings change, this year seems to have brought more than most. At The Centurion, we know the retail landscape continues to evolve. To help you start out 2016 on the best note, we asked a variety of industry experts for their take on dealing with these changes. Each replied from their own viewpoint, offering strategies and insights into the changes the year ahead will bring. Our second installment, Using Social Media To Hire And Fire, by Jewelers Vigilance Committee Senior Counsel Suzan Flamm, comes at a critical time of year when jewelers may be seeking to add additional salespeople or other temporary employees for the holiday season. Flamm addresses the legalities of using social media in your employee search--temporary or permanent--and presents a checklist of tips to keep you legal both before and after you hire. --Caroline Stanley
Using Social Media to Hire and Fire: Stay Current on Emerging Law
New York, NY—One change facing better jewelers today is that it’s getting harder to obtain information on prospective employees, thanks to laws disallowing credit reports and restricting the use of criminal histories.
This means that employers must rely on other means to obtain job-relevant information. Obvious places to start include: good job descriptions so that the hiring process is very focused on necessary skills; resume screening so that candidates with those skills are selected for further consideration; skilled interviews that probe relevant experience and expertise; and background checks that verify claims made by candidates as to education and prior employment. Another obvious place to look is social media. After all, if people post information about themselves online, why wouldn’t an employer have a look? Social media posts might reveal interesting facts, such as whether an individual has criticized an employer, harassed a co-worker, or engaged in illegal activity. Checking social media makes sense – but only if the employer knows the legal risks, and avoids violating anti-discrimination statutes, privacy concerns, and employee rights to discuss the terms and conditions of their employment. What follows is a discussion of the issues, followed by guidance for avoiding the legal pitfalls.
Discrimination Concerns. Most employers are very familiar with the laws that prohibit discrimination on the basis of protected characteristics, such as sex, religion, national origin, disability and race. They know not to inquire into these areas either in the application process, or during the course of employment, as it may be seen as evidence of discriminatory intent. After all, if an employer does not have any information about an applicant’s religion, they cannot be charged with discrimination should they elect not to hire that applicant. However, if during the course of checking that applicant’s social media posts they happen to learn the applicant’s religion, and then decide not to hire him or her, they may be exposed to charges of discrimination – even if the decision was based solely on legitimate factors.
Privacy Concerns. Many individuals restrict access to their social media posts or profiles to “friends” or other invitees. The general public, including a prospective employer, does not have access to the non-public, protected information. Encountering this roadblock, some employers have asked to be “friended” by applicants or employees, or otherwise gain access to the material that the individuals intended to be restricted. In response, many states have enacted laws that limit an employer’s ability to gain access to social media accounts, such as Facebook, Twitter, MySpace and LinkedIn. Over twenty states have enacted such laws, including California, Connecticut, Illinois, Michigan, New Jersey and New York. Employers in these states, for the most part, are prohibited from asking or requiring employees or prospective employees to disclose passwords, open social media accounts in the employer’s presence, add an employer representative to the contact list, or alter privacy settings. Money damages and other penalties may be available to individuals whose rights under these laws have been violated.
An Employee’s Right to Discuss the Terms and Conditions of Employment. The National Labor Relations Act provides that employees have the right to “concerted activity,” that is, to discuss wages, working conditions and other terms of employment, and to criticize their supervisors regarding these subjects. These discussions are protected both off- and on-line. In a recent case, a company discharged two employees for a Facebook exchange that was critical of the way the company handled income tax withholding. The decision of the National Labor Relations Board, that the exchange was protected as “concerted activity,” was upheld in court and the terminations were found to be unlawful.
This is not to say that all social media posts involving employment are protected. Employers have the right to prevent criticism of their products and services, and to protect the reputation of their businesses. Communications are not protected if they are made to the public and are not connected to any ongoing labor dispute, or if they are made with knowledge that they are false, or with reckless disregard of whether they are true or false. Nonetheless, the case described above indicates that the NLRB takes an expansive view of “concerted activity,” and employers should act accordingly.
Navigating the Law: Employer Use of Social Media. If you decide to use social media to help make hiring and termination decisions do so with these emerging legal trends in mind, and consider the following practical steps:
- Restrict your online search to public information, and focus on job and career oriented sites, such as LinkedIn.
- Offer the applicant or employee an opportunity to rebut damaging information obtained on a social media site. There may be an issue of misidentification. Or, a posting that appears to that of a particular individual may not be.
- Limit the number of social media searches you do by postponing that step until you are well into the hiring process, such as after the interview.
- Consider having an independent entity conduct the online searches. Ask that only relevant information be conveyed, such as criticism of an employer that is unrelated to any ongoing labor dispute.
- Before basing a termination on a social media posting that is critical of your company, determine whether the employee is engaging in concerted activity, such as discussing the terms and conditions of employment.
- Review your internet and social media policy to be sure it complies with state and federal law. For example, a policy that subjects employees to discipline for “inappropriate discussions about the company, management or co-workers” is too broad. A better practice is to advise employees not to post material that is inappropriate or harmful to the company, and provide examples, such as content that is defamatory, pornographic, proprietary or harassing.
- Reflect the culture that you want to see in your workplace – openness, integrity and fairness!
Questions about your role as an employer? Please contact JVC at 212-997-2002. Or, visit our website for information about JVC’s Jewelers Employment Manual at www.jvclegal.org.
Missed the first in this series? Click here for Ellen Fruchtman on Marketing.