Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/339575
AGGREGATES MANAGER July 2014 32 ROCKLAW Rock Is your social media policy in need of a makeover? GRACES by M. Robin Repass M. Robin Repass practices in the Labor and Employment Practice Group of Jackson Kelly PLLC's Denver office. She can be reached at 303-390-0024 or via email at firstname.lastname@example.org. Social W ith the popularity of social media as a source of communication in today's workplace, it is essential to construct sound policies to balance an employer's rights to protect business assets versus an employee's right to discuss workplace concerns. This is particularly true in safety-sensi- tive work environments, where the airing of safety issues on social media could trigger the attention of any number of federal agencies, including the Mine Safety and Health Administration (MSHA), the Occupational Safety and Health Administra- tion (OSHA), and the National Labor Relations Board (NLRB). Care should be taken in drafting acceptable use policies concerning online posting and Internet usage in keeping with the rapidly evolving law in this area. Screening applicants and em- ployees through social media The Internet has become an important tool for screening job applicants. In order to prevent the hiring manager from viewing potentially unlawful categories of information, the best practices recom- mendation is that the task of reviewing social me- dia should be delegated to a non-hiring individual, with instructions to view and report only on de- fined categories of information which are related to the business necessities of the position at issue. Viewing a candidate's Facebook page will likely provide the hiring manager with information on the applicant's race, religion, gender, sexual pref- erence, age, nationality, marital status or disability. If these topics are off limits during an employ- ment interview, privacy advocates argue that em- ployers should, likewise, be prohibited from using social networking applications as pre-screening tools to discover otherwise off-limit information. The hiring manager should be shielded from off- limit information, and provided a report only on information with a direct bearing on the appli- cant's ability to perform the position at issue. Caution should also be used when screening the social media accounts of current employees. Frequently, supervisors are given information by an employee that his or her co-worker has posted negative statements about the company or its practices online. Before deciding whether disci- pline is necessary, it is important to first view the statement in the context of whether it constitutes a form of protected (i.e. whistleblower) activity. For example, the Federal Mine Safety and Health Act of 1977 (Mine Act) in § 105(c) prohibits discharge or discrimination against any miner or applicant for employment who makes a complaint of an alleged danger or safety or health violation. A Facebook posting referencing workplace safety and health issues could very well be viewed by MSHA as constituting a viable complaint under § 105(c).