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Social Media Legislation
Social Media Legislation

Peter J. Lamont is a business and commercial litigation attorney nationally recognized in a wide variety of highly specialized areas within the kitchen, bath, lighting, construction, and design industries. He routinely represents various national and international companies within the design sector, and has achieved the highest rating in both legal ability and ethical standards as awarded by AVVO (

The importance of effective human-resource management for a lighting design business cannot be overlooked. Often, the areas of accounting, finance, production, and marketing take precedence over human resources, but it is extremely difficult for a design firm to function optimally or to grow and develop without having a formal set of procedures and policies in place to guide the management and the employees. The topic of human-resource management is far reaching and expands into payroll management, health insurance benefits, and related financial areas. In this article, we'll focus on the employer-employee relationship.

Over the past 10 years, we have seen an increase in litigation stemming from a failure to maintain employee policies and procedures. The primary claims made by employees arise from state and federal anti-discrimination laws. Under federal law, it is unlawful for employers to discriminate in relation to hiring, discharging, compensating, or providing the terms, conditions, and privileges of employment to an individual based upon his or her race, color, religion, sex, or national origin. (Under Title VII of the 1964 Civil Rights Act, sex includes pregnancy, childbirth, and related medical conditions.)

Often, a state's statutes will contain additional employee safeguards on top of the federal laws. For example, New Jersey's Law Against Discrimination is far broader than its federal counterpart, so New Jersey employees often opt to bring claims against their employers under the state law, instead of federal. And attorneys are eager to take such cases because of various fee-shifting provisions contained in the employment statutes, which basically provide for the attorney's fees to the employee's lawyer should he or she successfully prove that a violation of the law did occur.

The vast majority of litigation such as this can be prevented by proper and effective human-resource-management procedures and policies. For the most part, smaller design firms can implement these policies themselves; larger design firms may wish to outsource them. Proper management is not necessarily expensive, but it can be time-consuming and confusing. Design firm owners need to know when to ask for help from lawyers and human-resource professionals.

Finding Good Employees Today's job market is flooded with potential candidates, but it can be difficult to find the candidate that is the right fit for your firm. Before you begin the search, you must be clear about exactly which position, or positions, that your company needs to fill. This will aid in writing a clear job description. One of the biggest mistakes employers make is trying to find an employee who can fill a large number of roles. This results in receiving far too many résumés from individuals who do not have adequate experience.

There are several good ways to locate candidates: through ads in trade publications or on the Internet, through word-of-mouth and referrals, and by posting employment opportunities on your website. When employers become frustrated with their search, they often turn to employment agencies, but with such a diverse candidate pool available today, it does not make sense for a design firm to enlist the help of an employment agency, especially since the agency's fees can be excessive.

Screening Potential Candidates The economic crisis, combined with the overwhelming size of the applicant pool, has created a vastly different system of employee-screening procedures than those that existed five to 10 years ago. Employers are struggling to find the right candidate on the first try; they do not want to hire a candidate who appears good on paper and makes a good impression during the interview, only to find that the individual cannot do the job or does not adequately represent the firm. Having to repeat the screening process and hire someone new is costly and time-consuming.

Also, employers need to be mindful of liability issues. Under certain circumstances, they can be vicariously liable for the actions of their employees, so most employers want to learn as much about a potential employee as possible. As a result, new and often invasive screening procedures (given the amount of information that can be obtained on the Internet) are being used.

Once you have received résumés and applications for your open position, you need to weed out those who lack the requisite experience or skills. Then, begin screening the remaining applicants. Call to confirm his or her interest in the position and set up an in-person interview. Prior to committing your time to an interview, however, conduct a general Internet search for information. Often, you can learn a significant amount of information about a person through an online search. This research may result in information about the candidate that would exclude them from consideration, and thereby eliminate time wasted on an in-person interview.

Search for the candidate's name combined with his or her state of residency, or prior job positions. This should bring up social media links and photographs. Oftentimes, people do not limit access to certain social media sites and a potential employer can legally access certain information about a potential candidate.

Once you have met face to face with the candidate and have determined that the individual might be a match for your firm, it is highly recommended that you conduct a general background check. A typical background check, performed by a competent investigator, can cost between $50 and $100 and is certainly worth the cost if it saves you from lengthy and expensive litigation later.

One interesting and developing area concerning candidate-screening procedures involves employer requests for social media logins. Under Title II of the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act, employers are prohibited from accessing their employees' personal online information in an unauthorized manner. But when an employee or applicant willingly provides login information, the protections of these two laws may not be triggered since the employer is not accessing the information in an unauthorized manner.

Still, if an employer lawfully accesses an applicant's social media pages and uses the information to discriminate against the applicant in any manner, the employer would be liable under Title VII of the 1964 Civil Rights Act, which prohibits discrimination based on the protected categories of “race, color, religion, sex, and national origin.”

If an employer lawfully obtains the social media login from an applicant and does not violate Title VII, the employer would still be privy to personal information and private postings. Since jobs are scarce, many applicants are giving employers this access; others are deleting their social media accounts altogether.

State legislators across the country are aware of the shortcomings in the current federal laws and are debating the issue. Two states, Illinois and Maryland, have already passed bills making it illegal for an employer to ask an applicant or employee for his or her social media logins. Washington, D.C., Delaware, and New Jersey are considering similar bans. However, neither the Illinois nor the Maryland laws prohibit an employer from viewing information that is not restricted by privacy settings. And employers are free to set workplace policies on the use of the Internet, social networking sites, and email.