may be liable for an employee’s online endorsements of the employer if the employee does not properly disclose her affiliation with the employer. In addition to current employee issues, many businesses are also increasingly using social media and other online technology tools to market their organization and to search for, recruit, and screen potential employees. The legal obligations and rights of employers are continuing to evolve as technology changes. Nevertheless, employers can anticipate and plan for many of the legal risks associated with the use of technology in the workplace by applying existing laws to what we know about new electronic tools. Although new technological tools may ultimately be a “game changer” for employers, there are a number of practical steps that employers can take based on the law today to manage legal risk in this constantly evolving frontier. Discrimination Laws Federal and Minnesota state law prohibit discrimination both in hiring and in employment on the basis of various legally protected class statuses, including but not limited to race, color, creed, religion, national origin, sex, sexual orientation, marital status, familial status, disability, genetic information, receipt of public assistance, age, and military service. Most employers are aware of these restrictions and would never consider making a decision on the basis of an employee’s protected class status. However, advances in technology have revolutionized both the hiring process as well as management of current employees. Employers should be aware of the ways in which discrimination laws could be impacted by these changes, especially when utilizing AI as a screening tool. Protected Class Information . Employers generally may not ask applicants or employees about protected class status. In many cases, an employee’s protected class status (such as race or gender) will be apparent to an employer. However, there are many circumstances where an employee’s protected disability or religion would not be readily apparent to an employer. Resources available on the Internet—particularly social media—can complicate this delicate balance for employers. 61
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