Pub. 12 2015 Issue 2

O V E R A C E N T U R Y : B U I L D I N G B E T T E R B A N K S - H E L P I N G N E W M E X I C O R E A L I Z E D R E A M S Summer • 2015 17 in the workplace. Second, appropriate policies can serve to re- duce a company’s exposure to legal claims by both employees and third parties based on employees’ statements and conduct on social media. Tip 3: Craft policies that are specific, precise, and narrowly tailored to the company’s business interests. Recently, the National Labor Relations Board (NLRB) has in- creasingly addressed the issue of workplace policies that, both directly and indirectly, involve social media. In 2014, the NLRB issued several decisions relating to social media, often finding employer policies to be too broad, vague, overly subjective, not consistently applied, or not narrowly tailored to the employ- er’s defined and specific business interests in violation of em- ployees’ rights to engage in protected concerted activity. See Schmidt, Michael C., The Latest Do’s and Don’ts With Social Media Policies, Social Media Law & Policy Report, Bloomberg BNA (July 15, 2014). Employers should keep up-to-date on NLRB decisions in this realm, and develop and maintain social media policies that are specific, precise, and narrowly tailored to defined business interests. A policy that generally prohibits employees frommaking “offensive,” “inappropriate” or “dispar- aging” remarks on social media platforms could reasonably be interpreted to prohibit protected criticisms of the employer’s policies, in violation of the National Labor Relations Act, 29 U.S.C. § 157. In contrast, a policy prohibiting employees from engaging in harassment or discrimination of co-workers both in the workplace and after hours outside the workplace would likely be permissible if it is sufficiently precise and narrowly tai- lored to an employer’s interest of protecting its employees from unlawful harassment and discrimination. Policies that specifi- cally outline what is prohibited, define key terms, and protect, in a narrow fashion, an employer’s valid business interests, will likely be upheld. Tip 4: Do not require or request job applicants to provide access to their personal social media accounts. New Mexico law prohibits prospective employers from request- ing or requiring applicants to provide their personal social me- dia user names and passwords. NMSA 1978, § 50-4-34(A). An employer is not precluded from obtaining information about prospective employees that is in the public domain, or from implementing appropriate policies regarding workplace use of the internet, social networking sites and e-mail and from mon- itoring use of an employee’s electronic equipment and email. Sections 50-4-34(C) & 50-4-34(B). Tip 5: Use a third-party service or designated em- ployee without hiring authority to conduct social me- dia searches. Social media may be a vital tool in terms of re- cruitment and casting a wide net for potential job applicants. Yet it also raises potential discrimination issues given that most individuals’ social media sites include personal information, such as a person’s gender, age, ethnicity, or religious beliefs, which could be used in violation of state and federal discrimina- tion laws. Therefore, to the extent your company wishes to con- duct social media searches of prospective employees, the EEOC recommends such be done by either a third-party recruiter or a designated person within the company who does not have hir- ing authority. See EEOC Press Release, http://www.eeoc.gov/ eeoc/newsroom/release/3-12-14.cfm. In addition, the searches should only consist of publicly available information. Id.  Alana M. De Young is an Associate in the Modrall Sperling Law Firm, with offices in Albuquerque and Santa Fe. She works with employers and clients across NewMexico with litigation cases involving contract disputes as well as employment and personal injury claims. Reach Alana at (505) 848-1800 or alana.deyoung@modrall.com Reach your target audience a ordably. advertise get results DANI GORDEN Advertising Sales 855.747.4003 dani@thenewslinkgroup.com