U.S. Chamber for Legal Reform

Authors: Divonne Smoyer

The proliferation of social media use in the workplace has become fulfilling fodder for enterprising plaintiffs’ attorneys trolling for new ways to indict employers. By studying companies’ research on social media sites to vet job applicants, these attorneys can uncover evidence that hiring managers knew of applicants’ legally protected traits—allowing plaintiffs’ lawyers to claim employers relied on those traits in making discriminatory hiring decisions. These attorneys can also make hay of employers’ monitoring of social media use. Such monitoring may establish that employers had legal “notice” of workplace harassment, unpaid overtime, or other events that give rise to employment claims. The NLRB has issued a steady stream of anti-employer rulings related to social media, paving even more new roads for suits by plaintiffs’ lawyers, and by natural extension, labor unions. For U.S. businesses, all of this foretells an increase in employment litigation and a heightened risk of liability.

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