SSA Bans ALJs From Conducting Online Searches About Claimants

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Published on Monday, 07 May 2012 06:25

The Social Security Administration (SSA) has advised its administrative law judges (ALJs) that they may not use information obtained from online sources when deciding cases, a tool used by some judges to uncover fraudulent claims. SSA officials said ALJs cannot trust information posted online, and the process of searching ror information could compromise protected private information. The SSA’s ban covers all Internet sites, including social media sites such as Facebook.  Sen. Tom Coburn, an Oklahoma Republican, disagreed with the SSA’s decision, and in a letter to the Social Security Commissioner stated that “If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website, such information should be used by [adjudicators] to determine if the claimant was truly disabled.”

The controversy highlights the ongoing questions about the information individuals make available about themselves online, and how others, such as employers and government agencies may use that information for such things as hiring decisions, disciplinary procedures, and uncovering fraudulent claims. Social Security officials advised that they are not opposed to using information obtained from the Internet, but they do not want the “front-line deciders” searching for such information. Instead, such online searches should be a function for fraud investigators. According to Kia S. Green, a spokeswoman for the agency, “Adjudicators should do what they are trained to do — review voluminous files to determine eligibility for disability benefits. Office of Inspector General fraud investigators should do what they are trained to do — vigorously follow up on any evidence of fraud.” Read More.

Senators Ask EEOC and DOJ to Investigate Employer Demands for Social Media Passwords

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Published on Wednesday, 04 April 2012 05:26

U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) have requested that the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) launch a federal investigation into the growing trend of employers demanding that job applicants turn over their user names and passwords for social networking and email websites in order to gain access to personal information like private photos, email messages, and biographical data. According to recent reports, a growing number of employers across the country are demanding the information from job applicants as part of the interview  process – including photos and personal messages not shared with anyone else. Blumenthal and Schumer contend that this practice represents an intrusion into personal privacy that could make it more difficult for individuals to get jobs, and it could also expose employers to discrimination claims. According to Blumenthal, "I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks…A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy. An investigation by the Department of Justice and Equal Employment Opportunity Commission will help remedy ongoing intrusions and coercive practices, while we draft new statutory protections to clarify and strengthen the law. With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information.” Blumenthal and Schumer are also drafting legislation that would seek to fill any gaps in federal law that allow employers to require personal login information from prospective employees to be considered for a job. The senators are also seeking additional legal opinions, from both the EEOC and DOJ to determine what protections currently exist and what additional protections are necessary. Read More.  

NLRB Holds Employee’s Linkedin Post Was Unprotected Activity

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Published on Tuesday, 15 November 2011 05:14

In a recent case involving social media, the National Labor Relations Board (NLRB) has ruled that an employee’s post on Linkedin constituted unprotected activity.  In 2010, an IT supervisor invited the employee to join Linkedin, a professional and business related networking site.  The invitation identified the employer and asked for the employee’s job title. As a joke that the employee believed only the supervisor would see, he replied “f_ _ _ tard.”  In February 2011, the employee discussed with some coworkers a successful wage and hour lawsuit filed against another employer that involved employees getting comp time instead of being paid overtime. Although they all agreed that their employer’s policy on overtime might also be unlawful, no one wanted to complain to management.  Subsequently, the employer revised its policy and began paying overtime instead of giving comp time. The employer then conducted a study about setting up its own Linkedin profile and as part of that looked at the posts of its employees. After viewing the employee’s “f_ _ _ tard” post, the company advised the employee that the post was in violation of its Electronic Communication Policy as it disparaged the company; the employee was then terminated by the company. The employee filed suit alleging that the company terminated him for engaging in conversations about the overtime issue. He asserted that the timing was suspicious since the post had been on Linkedin for over a year, but the employer alleged it had discovered the post only two months after the employee’s conversation about the overtime. The NLRB held that the “Linkedin ‘joke’ clearly was not protected” and observed that “Moreover, the LinkedIn posting was not a pretextua1 reason for discharging the Charging Party; the Employer has demonstrated that it only discovered the posting in its April review of prior employee posts as part of its assessment of problems with its new LinkedIn page. Finally, no one contends that the Charging Party's posting in violation of the electronic usage policy—the stated reason for his discharge—was protected by Section 7."  Read More.

HR Practice Pointer: Drafting Social Media Policies

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Published on Friday, 07 October 2011 04:17

Employers remain confused about what their employees can and cannot post on social networking sites such as Facebook and Twitter regarding their employment/employer. To make matters worse, the National Labor Relations Board (NLRB) has taken a strong stance against social media policies that in their opinion are overly broad. Lafe Solomon, general counsel for the NLRB, recently commented that “Most of the social media polices that we’ve been presented with are very, very overbroad…They say you can’t disparage or criticize the company in any way on social media and that is not true under the law.” Thus, employers must be careful about polices that infringe on “protected activity.” However, it seems unlikely that the NLRB, and/or the courts would hold that all information posted by an employee on a social networking site is considered “protected activity”; for example, if an employee posts privileged and confidential employer information or if an employee posts comments that are harassing/discriminatory against a co-worker or anyone else in the workplace. In any event, employers should recognize that this is an evolving and unclear area of law at this point. Thus, the best practice is to take a conservative approach when drafting social media policies, make sure they are not overly broad, and consult with an employment law specialist before implementing a social media policy to ensure it is properly drafted and appropriate for the workplace.