“EMPLOYMENT-AT-WILL” IN NEW YORK

As a general rule, all employees in the private sector are “at-will” unless they have an individual employment contract or are represented by a union. This means that they can be disciplined–or even fired–for any reason, no reason, good reason or bad reason. There is NO “wrongful termination” in New York.

There are several exceptions to the employment-at-will rule. The best known exception is that an employer may not take adverse action against an employee (or refuse to hire an applicant for employment) on account of race, religion, sex (including pregnancy), national origin, age, disability, marital status, military status, sexual orientation or domestic violence victim status.

There are other exceptions. For example, an employer cannot reject a convicted felon who applies for employment without first applying and balancing eight factors (include the age of the person at the time of conviction and nexus between crime of conviction and job duties). This outline will address issues for employers arising from the use of social media.

SHOULD YOU SCREEN APPLICANTS USING THE INTERNET, INCLUDING SOCIAL MEDIA?

Pros:

You may learn whether the information on the applicant’s resume is accurate.

You may learn other information that helps you make a hiring decision (including information that would bear on a “negligent hiring” claim).

Cons:

You may learn information that you otherwise are not entitled to including the applicant’s race, religious beliefs, national origin, age, disability, marital status, military status, sexual orientation or domestic violence victim status.

If you decide NOT to hire the applicant, a claim can be made that your decision was motivated by one of the above-listed protected classes.

The methods you use to obtain or access social media may run afoul of privacy laws and subject you or your company to liability.

Advice:

The person making the hiring decision should NOT be the person screening the applicant on social media.

Do not “friend” a job applicant to get more information about them.

What you learn online is NOT always accurate. Give the applicant an opportunity to explain negative information you discover online.

Document everything you do and consider during the hiring process.

Be prepared to justify, with legitimate and non-discriminatory reasons contemporaneously confirmed during the hiring process, who you hired/did not hire.

Be wary of hiring a third party to use the Internet, including social media, to screen applicants. This may subject you to a stringent federal law which limits your ability to use financial and other information to make hiring decisions.

A proposed state law would prohibit employers from requiring applicants and employees to disclose usernames and passwords for their social media. Even though it is not illegal to do so currently, DO NOT ask for this information.

Get appropriate legal advice before you refuse to hire an applicant based on what you learned on the Internet, including social media.

SHOULD YOU DISCIPLINE AN EMPLOYEE FOR THEIR ACTIVITIES ON THE INTERNET, INCLUDING SOCIAL MEDIA?

Advice:

Discipline an employee when their activities create a material conflict of interest relating to your proprietary or business interest—defined in your Employee Handbook or in a separate policy signed by the employee–UNLESS the activities are otherwise protected.

Do NOT discipline an employee for activities that implicates one or more protected classes (e.g., statement about religious beliefs).

Do NOT discipline an employee for activities that implicate the NY Legal Activities Law.

An employer may not take adverse action against an employee or applicant under this law because of: (A) political activities (e.g., running for public office, campaigning for a candidate or participating in fund-raising for a candidate, political party or advocacy group); (B) consuming legal products (e.g., cigarette smoking); (C) engaging in legal recreational activities (e.g., skydiving); or (D) union membership or exercising related rights (e.g., trying to organize a union).

Do NOT discipline an employee for activities that arguably are “concerted.”

The National Labor Relations Board [“NLRB”] enforces federal laws that prohibit an employer from punishing employees who engage in “collective action.”

Employers cannot retaliate against employees who complain in a collective way about terms and conditions of their employment (e.g., unsafe workplace). This is considered protected “concerted activity.”

Where a virtual communication is the continuation of a “real world” encounter (e.g., face-to-face discussions with co-workers), social media posts likely will be protected by the law as concerted activity. Where the post itself is the first expression of an employee concern, it is less likely to be protected by the law as concerted activity.

Whether an activity is “concerted” is complicated and fact specific.

Get appropriate legal advice before you discipline an employee based on their social media activity.

Document everything you do and consider during the disciplinary process.

Be prepared to justify, with legitimate and non-discriminatory reasons contemporaneously confirmed during the disciplinary process, why you imposed the discipline that you imposed.

SHOULD YOU ADVISE EMPLOYEES ABOUT YOUR POLICIES REGARDING INTERNET/SOCIAL MEDIA USE?

Advice:

Although current law requires that only a very few policies be confirmed in writing, it is wise to address many issues–including your policies regarding Internet and social media use–in a well written employee handbook.

A well written policy regarding Internet/social media use should accomplish some or all of the following goals:

reduce the number of misunderstandings between you and the employees;

strengthen your position if you challenge an application for unemployment insurance benefits from an employee who was fired for misusing the Internet or social media;

defeat a claim by an employee that they “own” the hardware or software on the company computer devices that they use;

defeat a claim by an employee that they “own” the company’s website or social media account.

strengthen your defense if an employee uses the Internet or social media to harass someone unlawfully (e.g., sexual harassment);

protect your reputation and trade secrets;

limit your liability for unpaid overtime by non-exempt employees;

limit your potential liability for defamation.

MUST I KEEP E-MAILS AND SOCIAL MEDIA DATA IF WE ARE SUED? DO I HAVE TO PRODUCE THEM?

Advice:

If you know (or should know) about a dispute that may result in litigation, you can be penalized by the Court if you do not preserve e-mails, social media data/content and other documents that may be relevant to the dispute.

The penalties range from an “adverse inference” that the information you failed to preserve would have been helpful to your opponent to a finding that you are liable because you did not preserve this information.

You should suspend document/e-mail destruction policies once you know (or should know) about a dispute that may result in litigation.

Your obligation to preserve this information does NOT mean that all the information preserved has to be provided to the adverse party (e.g., some e-mails might be subject to the attorney-client privilege).

Anything you produce is NOT necessarily admissible if there is a trial. The duty to provide relevant information is MUCH broader than what is admissible before a judge or jury in a legal dispute.

Check out this article from the National Labor Relations Board for additional helpful information.

CONCLUSION

Internet and social media use is a new and constantly evolving area of the law, including how it relates to employment. The law is catching up with technology and is not clearly established yet.

Please feel free to contact us if we can help you.