Legal opinion: Social media and the workplace – a global perspective

There has been a global explosion in the popularity of social media sites such as Facebook, Twitter and LinkedIn in recent years. As well as the benefits they confer, social media throws up some huge challenges for employers around the world. We look here at some of the key risks that employers are facing elsewhere in Europe and in the United States, and what employers in the UK might be able to draw from the practices adopted in these areas.

A European perspective

We highlight the position in France and Germany as one that is illustrative of many other countries within the EU. As can be seen, it is a position similar to that in the UK.

Key points

  • Employers in the EU and US face similar challenges when dealing with the use of social media.
  • Employers in the UK and US tend to take a more proactive approach towards preventative steps than those on the continent.
  • Global businesses can adopt a common approach in dealing with the risks that arise within each country by implementing social media policies, providing training to employees on the use of social media and putting in place processes that minimise the discrimination and data protection risks that arise when using social media sites.

Many employers in France and Germany use information on social media sites to vet job applicants. As in the UK, this is not prohibited but could result in employers facing risks under discrimination and data protection laws.

Discrimination against applicants on the basis of a protected characteristic, such as their gender, sexual orientation, age or race, is prohibited. It is common for such information to be found on an individual’s social networking page. If employers use this information as the basis for rejecting an application, disgruntled applicants may bring claims for discrimination. In practice, the risk of claims is low as applicants would find it difficult to prove that they have been discriminated against.

The use of social media sites to vet applicants can also give rise to potential data protection implications. For example, should an employer in France wish to refer to an applicant’s social media profile as part of the recruitment process, they are required to notify the applicant before doing so. The restrictions are, however, less onerous in Germany. For example, employers are permitted to use information that is contained within professional networking sites such as LinkedIn without data protection restrictions.

Aside from the vetting of applicants, another key risk (as in the UK) is the misuse of social media by employees. For example, disclosing confidential information about the employer’s business or making disparaging comments about the employer or its employees.

Some employers in France and Germany take disciplinary action in relation to such misuse, if the circumstances permit, and this approach has been endorsed by the courts. However, this is less common than in the UK, with French and German employers rarely taking the sort of preventative steps that are more common here, such as awareness training for employees and the implementation of social media policies.

A US perspective

Many employers in the US also use social media sites to vet job applicants and, as in the EU, this practice is not prohibited. However, unlike in the EU, there are no specific data protection laws that place restrictions on the collection of data from social media sites.

As in the EU, certain characteristics such as gender, race and disability are protected under US federal discrimination law. As such, US employers face similar risks of discrimination claims should information relating to protected characteristics be used to vet applicants. Discrimination issues could also arise in the context of negative comments posted by employees about colleagues.

As in the EU, US employers will take disciplinary action if the circumstances permit (although there are some particular restrictions in cases where an employee uses social media to protest against working conditions on behalf of other employees, in which case the employer could face action from the National Labor Relations Board). In terms of preventative steps, employers in the US are closer to their UK counterparts in taking a proactive approach. Many employers have social media policies in place, provide training to their employees and have sophisticated HR operations that minimise the risks associated with using social media to vet applicants. For example, they might ensure that the person who scans social media sites is instructed to extract only relevant information for the application process and that this person is not the same person who determines the application process. This way, the irrelevant material (which might contain sensitive personal information) will not make its way through to the decision-maker.

Conclusion

Employers in the EU and US face similar challenges when dealing with social media and the steps to be taken to address these challenges are more or less the same. This will provide some comfort to a global business striving to ensure common standards and a harmonised approach towards its employees. Many employers in the UK and US are ahead of the curve in comparison with employers in continental Europe and these employers can lead the way in helping others to deal with the challenges brought by the use of social media in the workplace.

Christopher Fisher, partner, and Purvis Ghani, senior associate, employment and benefits group, Mayer Brown

FAQs from XpertHR

Comments are closed.