Final GINA Regs Delayed: GINA & Social Media Considerations for Employers

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) makes it illegal to discriminate against employees or applicants because of genetic information. It prohibits using genetic information to make employment decisions, prohibits acquisition of genetic information by employers, and limits disclosure of genetic information by employers. (Harassment and retaliation are also forbidden.)  Title II took effect on November 21, 2009. The proposed regulations were published last year, and the final regulations were initially expected to be published in May of 2010, but publication of the final rule has been delayed.

This leaves employers (and their lawyers) in interpretation-limbo a while longer. With respect to social media issues specifically, GINA makes the mere acquisition of genetic information illegal. Because the Act broadly defines the term “genetic information” (including even medical conditions of family members), checking out an employee’s or applicant’s Facebook profile could easily result in a violation. For example, if an employer found an employee’s status update saying he is raising money for multiple sclerosis in honor of his father who is suffering from it – just getting that information could be a violation.

Some acquisitions of genetic information aren’t illegal; the law provides six exceptions. One of those exceptions is inadvertent acquisition. “Well, I didn’t know I was going to find this information on his profile.” This probably isn’t going to protect employers. If a supervisor or human resources manager intentionally accesses a profile, the information found there isn’t acquired inadvertently. (Depending on the facts, I suppose this could change. If an employee sends a friend request to his supervisor, and weeks later, the employee’s status update appears in the supervisor’s Facebook news feed – there may be a better argument for the inadvertent acquisition defense.)

The better possibility is the exception for “commercially and publicly available information.” The statute identifies newspapers, magazines, periodicals, and books as potential sources of genetic information. The proposed regulation adds to the list information obtained through electronic media (internet, television, and movies). This suggests social media would be exempted – but the EEOC then specifically invited public comment on whether “personal Web sites, or social networking sites” would be a prohibited or exempted source of genetic information. So, it’s still not clear whether social media profiles would fall under the "commercially and publicly available information" exemption. If it doesn’t fall within the scope of this exception, an employer that obtains genetic information by checking an applicant or employee profile would likely be violating GINA.

Of course, even if a social networking profile turns out to be an excepted source of information, employers still must be careful in how they use the information they acquire. As is the case with any other kind of unlawful discrimination, an adverse employment action taken after the employer becomes aware of an employee’s protected status might suggest the employment decision was because of the protected status and not performance.  (Not only true in the context of current employment relationships, but also in the context of hiring.)

Considerations for Employers Before Disciplining or Discharging Employees for Online Social Networking Activity

Today, I spoke at a seminar focused on "Employee Documentation and Discharge in Iowa and Nebraska," along with two shareholders in the Dickinson, Mackaman, Tyler, & Hagen employment law practice group, Ann Holden Kendell and Rebecca Boyd Dublinske. In addition to some general topics, I covered a segment focused on adverse employment action in response to employees’ use of social networking web sites. The attendees seemed interested in the topic, so I’ll post some tidbits from that presentation here.

(Note that in an earlier post, I discussed risks employers might face in accessing online profiles of potential employees during the recruiting process. Some of those risks also arise in the context of addressing the issue of online activity of current employees.)

We all know Web 2.0 has dramatically changed our understanding of communication, interaction, and technology. As social networking sites become more and more popular, employers realize more and more employees use these sites. Many employees comment about their work, their employer, or their co-workers online. Sometimes these comments can have serious repercussions for the employer. What an employee does online may:

• Hurt the employer’s reputation, or disparage the company or its officers;
• Disclose proprietary information (maybe even inadvertently);
• Result in vicarious liability for the employer (for example, supervisor harassment via Facebook); or
• Otherwise violate company policies.

The general rule in most U.S. jurisdictions is at-will employment – which allows private sector employers to discipline or fire at-will employees for any or no reason (such as violation of company policy based on online activity). Some exceptions to the doctrine exist, however, and might limit an employer’s ability to respond to employee activity online. Some things to consider before reacting to employees’ use of social networking websites:

• How employer accesses the information. Depending on the circumstances, how an employer accessed the offending information might result in liability for the employer, or perhaps undermine the investigation that led to adverse action in the first place. For example, I’ve mentioned that accessing an online profile or social networking group when the user has taken advantage of certain privacy settings might result in an invasion of privacy claim under either state or federal law.

• Employment or Union Agreements. In other words, make sure it’s really at-will employment. Employers should be sure discipline or termination wouldn’t be violating the terms of any agreements that are in place.

• Discrimination. Similar to concerns in the context of hiring, a social network profile often reveals an employee’s protected status(es). People document their religious beliefs, age, sexual orientation (protected in some states, including Iowa!), and on and on . . . Employers might access information they wouldn’t otherwise know about. And once they see it, there’s no undoing it. Discipline taken after the employer becomes aware of a protected status might support an employee’s later claim that improper considerations – rather than performance – influenced the decision to discipline. Employers should also consider whether a particular disciplinary action might suggest a selective enforcement issue.

• Retaliation. Could the content of an online profile be considered protected activity such that discipline would be against public policy, and hence, illegal? If an employee seems to be complaining about work or an employer, consider whether those complaints might be protected.

• National Labor Relations Act. The NLRA may protect online commentary if, for example, the content could be considered an effort to organize a union, or somehow related to a labor dispute. Employers should consider whether discipline might be considered an unfair labor practice.

• Off-Duty Conduct Statutes or “Lifestyle Discrimination” Statutes. Some states protect an employee’s lawful, off-duty activities. Employers with workers in those states could be pretty limited in how they may react to employees’ online activity.

• First Amendment. Public employers must consider First Amendment implications of disciplining employees based on online speech.

• Inaccurate Information. Although not really a legal consideration, employers should keep in mind that online profiles often contain inaccurate or misleading information. Sarcastic comments or inside jokes may easily be taken out of context or misunderstood. Employees may also have little control over some content in their profiles (i.e., someone else may post a comment on the employee’s Facebook “wall” or photos of the employee).

• Other Practical Implications. For example, consider the public relations issues arising as a result of a “Facebook firing.” Terminations resulting from online activity remain relatively newsworthy, and may garner attention a company would rather avoid by imposing less severe discipline.

This list isn’t all-inclusive, and new issues come up every day. Still, employers would be wise to check with legal counsel before disciplining or discharging an employee for the employee’s conduct online.

Risky (Recruitment) Business? Potential Risks for Employers in Using Social Network Profiles for Candidate Screening

Today, I’m presenting on Web 2.0, social networking, and legal implications in employment at Dickinson, Mackaman, Tyler, & Hagen’s 2009 Employment Law Client Seminar in West Des Moines. As a portion of my segment, I’ll be going over a number of risks employers face when they use social networking sites as part of their hiring or screening process. Potential risks include:

• Incorrect information or information taken out of context. Information in a person’s online profile or “wall” space on Facebook, for example, isn’t always accurate. Neither are assumptions about that information. Keep in mind users sometimes have no control over content others post to their site. Of course, sarcastic comments or inside jokes could easily be taken out of context and misunderstood.

• Reveals information about a candidates’ protected class. Social network profiles include all kinds of protected information: people often list religious beliefs, age, race, gender, sexual orientation (protected in Iowa!), military status, and so on in profile information, for example. It’s risky for employers to get access to this information they wouldn’t otherwise ask about during the hiring process – and information upon which they can’t base hiring decisions. Once an employer sees this stuff, they can’t “un-see” it! Employers may find themselves having to prove a decision to refuse a candidate wasn’t influenced by the information online.

• Invasion of privacy. Depending on the circumstances, checking online profiles could lead to an invasion of privacy claim under various federal or state laws.

• Off-duty conduct discrimination. Some states have laws prohibiting discrimination based on off-duty conduct. If an employer has employees in states with such laws, it could really limit the employer’s ability to use social networking sites as part of the screening process.

• Fair credit reporting laws. If employers use an outside agency to conduct background checks on candidates, they may need to follow consent and disclosure requirements of fair credit reporting laws. The federal Fair Credit Reporting Act is one such law, and states sometimes have similar statutes.

Of course, some might argue employers have a duty to check public profiles available through social networking sites that are freely accessible to minimize risks of later negligent hiring claims. Employers do have a duty to consider all reasonably available information in making hiring decisions, and failure to check online profiles could arguably support a future negligent hiring claim.

Employers should carefully weigh risks and benefits of incorporating social networking checks into its screening process. If employers plan to use social networks as part of their vetting of candidates, they should consider working with counsel in developing an internal policy to govern the process.