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FMG Law Blog Line

Posts Tagged ‘social media’

Are Your Facebook Job Postings Violating the ADEA

Posted on: February 8th, 2018

By: Brenton S. Bean

So say putative class action plaintiffs in the Northern District of California.  See Communications Workers of America et al v. T-Mobile US, Inc., et al, Case No. 5:17-cv-7232 (N.D. Ca), filed Dec. 20, 2017.  Plaintiffs assert that Facebook has become the modern employment agency, providing not only a platform, but also data and strategies to help employers find candidates.  The lawsuit alleges that Facebook allows, and in some instances requires, a target audience be defined, which includes age restrictions.  In addition, Facebook uses its own massive database and algorithms to determine which users will see the ads, often on the basis of age.  This practice of “microtargeting” advertisements for employment discriminates against older workers, plaintiffs say.

Shortly before the lawsuit was filed, the New York Times ran an article regarding Facebook advertising and age discrimination.  Facebook and other social media sites have recently become more popular means by which employers advertise for job openings.  The Times story indicates many companies use Facebook’s ability to target its users by demographics, such as age, and therefore have discriminated against job applicants by restricting the scope of their Facebook ads to younger Facebook users.  Interestingly, that use of an age restriction is not always limited to cases where the advertiser requests such a restriction.  Facebook also takes the parameters identified by the employer and uses its own statistical methodologies to target the ad.  That means age restrictions may have been used in advertisements without the advertiser’s knowledge, according to the claim.

The scope of the case is potentially enormous.  First, the putative class size is immense.  The class as defined includes all Facebook users nationwide who are age 40 and older, who are interested in receiving employment-related advertisements or recruiting from employers via Facebook, and who were excluded from receiving an ad because of their age.  Second, the complaint names not only four defendant employers, but also a defendant class of employers and employment agencies.  Plaintiffs alleged there may be a thousand or more members of the defendant class, which could include every employer that has used age-limited Facebook ads.  In addition to the federal ADEA claim (which is expected to be amended once the charge process runs its course), plaintiffs have asserted claims under state law for discriminatory advertising and disparate impact recruiting and hiring.

While the named defendants are primarily large companies, the putative defendant class may also include many smaller employers.  Whether potentially implicated or not, companies are advised to review their job placement advertising.  At this juncture, it is too early to assess the class’s chances or the merits, either under the ADEA or the articulated state law claims.  We will monitor this matter closely.

If you have any questions or would like more information, please contact Brenton Bean at [email protected].

Employee Fired for Tweeting Complaint About Sex Jokes

Posted on: March 26th, 2013

By: David Cole

This USA Today article is another example of how social media is presenting new legal issues in the workplace. According to the story, the tech company SendGrid fired a female employee named Adria Richards because she tweeted complaints about a group of men sitting behind her at a conference making sex jokes.  You can read Ms. Richards’s play-by-play tweets about the jokes (complete with pictures of the alleged jokers) by clicking here.  According to the story, SendGrid says it terminated Ms. Richards, because it “doesn’t support how she reported the conduct.”  This raises a number of interesting issues, but at the very least it is a good reminder of the new challenges employers face because of social media.  Time will tell, but what do you think – fair decision or cautionary tale?

NLRB Strikes Down Another Social Media Policy

Posted on: December 10th, 2012

By: David Cole
The NLRB has ruled that another social media policy is unlawful because it infringes on employees’ rights to engage in concerted activity.  This time, it looked at DISH Network’s social media policy, which stated that “you may not make disparaging or defamatory comments about DISH Network, its employees, officers, directors, vendors, customers, partners, affiliates or our, or their, products/services.”  Just as it did in the recent cases of Costco Wholesale Corp. and Karl Knauz Motors, Inc., the NLRB ruled that this policy unlawfully interfered with employees’ rights to engage in concerted activity by complaining about work conditions.  In addition, the policy banned employees from engaging in negative electronic discussion during “company time.” The NLRB ruled that this provision also was unlawful because it did not clearly convey to employees that solicitation can still occur during breaks and other non-working hours.

You may read the DISH Network Corp. decision here.  This is another reminder for employers to review their social media policies in light of these recent rulings.

California Becomes Third State to Limit Access to Employees’ Social Media Accounts

Posted on: October 1st, 2012

By: David Cole

On Thursday, Governor Jerry Brown signed a new law that significantly limits when California employers may ask employees and job applicants for social media information.  Under the new law, an employer cannot require or request an employee or job applicant to disclose his username or password, access a social media account in front of the employer, or share any social media content with the employer.  However, there is an exception that allows an employer to ask an employee to divulge social media that is reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.  The new law takes effect January 1, 2013.

With this new law, California joins Maryland and Illinois as the first states to have laws restricting employer access to employees’ social media accounts.  Fittingly, Governor Brown announced the new law via Twitter, Facebook, Google+, LinkedIn, and MySpace, saying that this law, and a companion law that establishes a similar privacy policy for postsecondary education students, will “protect Californians from unwarranted invasions of their social media accounts.”

Better Not Ask for an Employee’s Facebook Password in Illinois

Posted on: August 9th, 2012

By: Brad Adler

Reacting to the chorus of critics lamenting the purported trend of employers demanding employees provide them with their social networking passwords, Illinois has now joined Maryland in prohibiting companies from demanding an employee’s social networking passwords as a condition of employment.  The law applies to both small and large employers and is administered by the Illinois Department of Labor.  In the event that employers violate this new law, employees can sue employers in state court.  It should be noted that several other states also are considering similar legislation, so if your organization currently seeks such information from employees as a condition of their employment, you need to stay current on this area of the law in the state where the employee is working.

Finally, there is nothing in this law that prohibits employers from implementing and enforcing electronic monitoring policies when employees are using the employer’s technology resources.  But this new law does remind employers that the language of any such policies have to be well-drafted and enforced in a manner consistent with state (and federal) law.