by Ian Gabriel Nanos

Like it or not, we live in a digital-age, and how people choose to define themselves is often readily showcased on social networking sites such as Facebook.  Given the candid manner many individuals express themselves on their social networking profiles, it’s only natural that employers have started to pay attention.  Why wouldn’t they? Employers want to pick the right person for the job and that their employees do not disparage the company or act in a manner that threatens workplace security.  But when news spread that a few employers were demanding access to applicants’ on-line profiles, many – including businesses and members of Congress –decried this practice as an unwarranted intrusion of privacy.

Specifically, Facebook stated that this practice “undermines the privacy expectations and the security of both the user and the user’s friends,” indicating that sharing passwords or granting another individual access would violate Facebook’s “Statement of Rights and Responsibilities.”

On Capitol Hill, U.S. Senators Charles Schumer, N.Y., and Richard Blumenthal, CT., wrote a joint letter to the U.S. Department of Justice and to the EEOC, requesting an investigation of the practice.  A bill was also introduced in the House of Representatives aimed at prohibiting the practice.  Other legislation may be in the works at both the federal and state level.  Maryland was the first state to pass legislation banning employers from asking for an employee’s or applicant’s social media site passwords.  Other states may soon follow suit.

Although many users update their privacy settings to limit the content that is publicly available, granting a potential employer access allows them to readily sidestep those controls.  This is cause for concern, but it is not just about privacy.  It is also a question about whether it makes good business sense for an employer.

While employers may gain some benefit from learning additional information that helps guide hiring decisions, employers should weigh those benefits against possible disadvantages.  Clearly, there are circumstances, such as government positions with high-level security concerns, where it may be a “need to know” situation.  In most ordinary cases, however, employers should consider the pitfalls before deciding that Facebook should be part of the applicant review process.

In other words, employers should be cautious about what a social media search might reveal.  Many jurisdictions, including New York, have already enacted statutes that prohibit an employer from making decisions in reliance on certain lawful recreational activities or associations outside of work.

By looking at an online profile, an employer might learn information regarding an applicant or employee’s protected classification that would not be otherwise revealed on a resume.  Thereafter, the employer could be charged with a discriminatory failure to hire claim based on that newly acquired information.  Similarly, an employer may unwittingly take on a duty that had not previously existed.  For example, the employer may become privy to information suggesting that an employee is unstable and, based on that knowledge, the employer could be charged with having acted unreasonably by subsequently entrusting that individual with certain responsibility.

Moreover, an employer may face liability if it takes adverse action after happening upon conversations that could be considered union activities or “concerted activities” under the National Labor Relations Act.  The National Labor Relations Board has certainly said a lot about that recently.

Finally, employers may risk losing out on top-talent that may be discouraged by the policy.

The bottom line is that, in this digital age, employers need to consider the impact of social media on workforce issues.  Employers should review their workforce needs and address social media issues in their internal hiring policies and practices as well as in their handbooks and other policies disseminated to employees and applicants.  This goes beyond merely informing employees that their internet use may be monitored, because a basic technology policy that glosses over social media issues may end up causing problems in the long-run.  The same can be said for an inflexible, uniform policy, because a single policy may not be right for every situation.

by Michael A. Kalish and Adam Tomiak

Sens. Tom Harkin, D-Iowa, Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vt. recently introduced the Protecting Older Workers Against Discrimination Act, a bill intended to lessen the burden on age discrimination plaintiffs under the Age Discrimination in Employment Act (“ADEA”).  The bill seeks to return age discrimination plaintiffs to the standard the Senators believe they were subject to prior to the Supreme Court’s ruling in Gross v. FBL Financial Services, Inc., 557 U.S. __, 129 S. Ct. 2343 (2009).

In Gross, the Supreme Court held that age discrimination plaintiffs must show, by a preponderance of the evidence, that “but for” their age, they would not have been subjected to the adverse employment action.  This contrasts to the burden of persuasion under Title VII, which allows plaintiffs to state a claim based on race, color, religion, sex, or national origin, by showing this characteristic was “a motivating factor” for the adverse employment action.  The Court concentrated on significant differences in the statutes’ language and the history of amendments to each.  As a result, the Court vacated the Eighth Circuit’s decision to allow a “mixed motive” standard, i.e., that the adverse employment action resulted from both discriminatory and non-discriminatory considerations, to sustain an ADEA claim.

The bill seeks to amend the ADEA, as well as the Americans with Disabilities Act and Rehabilitation Act of 1973 (statutes to which lower courts have applied the Gross holding’s reach), to specifically allow mixed-motive claims to discrimination plaintiffs.  In addition, the bill would allow claims under these statutes to be interpreted under the McDonnell Douglas burden-shifting framework, which provides that once an employee has satisfied her or his lowered burden of proof, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the challenged  employment actions.

If enacted, this bill would potentially lower the standard of proof for ADEA plaintiffs by allowing them to show only that their age was one of many factors, rather than the dispositive factor, in their employer’s decision to take an adverse employment action against them.  This could result in increased exposure to employers defending against age discrimination claims.