Posted: July 28, 2011
Hiring and firing: How social media fits in
There are questions employers should considerTroy Rackham
With an estimated 34,000 Google searches every second, the Internet is most assuredly a source of information for employers when making hiring and firing decisions. Given the inevitable use of the Internet to make these decisions, there are a number of questions that employers should consider:
• Should an employer use the Internet to investigate prospective employees?
• What liability could there be if an employer uses the Internet in this manner?
• Should an employer affirmatively address, in its practices or procedures, the use of the Internet to investigate prospective employees?
• May an employer terminate an employee for online content posted during non-work hours?
• Does it matter whether the employee's online content is or is not about work-related topics?
• What recourse, if any, does an employer have in disciplining an employee for inappropriate conduct in social media?
Prospective employees generally know that they should scrutinize their online presence so as not to have their resume hit the trash can due to one weekend of debauchery posted on a Facebook photo album. Employers, on the other hand, too often fail to scrutinize their use of social media in hiring. Whether there is an official policy to run an online search of a prospective employee or informal protocol of the hiring manager, an employer's practices and procedures should address the use of social media to investigate prospective employees.
Those practices and procedures must ensure that the employer appropriately uses information obtained from online searches. For example, the employer must ensure that it does not base its employment decision on proscribed reasons and that it does not discriminate against prospective employees because of their age, race, gender, religion or other illicit categories.
Instead, businesses must be aware of the potential liability in searching the online content of prospective employees. For example, a human resources representative decides to look-up a prospective employee on Facebook and discovers that the individual is two months pregnant. She decides not to hire that candidate. Now, the business is vulnerable to an employment discrimination lawsuit if the candidate finds out about the human resources representative's online activity and links the decision not to hire to the candidate's pregnancy.
If a business wants to affirmatively use social media in evaluating the candidate and in hiring decisions, then it should express this practice in a social media policy and remind interviewers of the pertinent laws prohibiting discrimination in employment decisions.
In a survey conducted by the Health Care Compliance Association and the Society of Corporate Compliance and Ethics, almost 25 percent of respondents reported that the employer had disciplined an employee for conduct on Facebook, Twitter or LinkedIn. In November 2010, the National Labor Relations Board (NLRB) initiated an unfair labor practice action against an employer for terminating an employee who posted personal negative comments about her supervisor on Facebook.
The NLRB argued that the employer's termination was unlawful under the National Labor Relations Act (NLRA) because it was based on a policy that prohibited employees from engaging in "protected concerted activities" - discussing the terms and conditions of their workplace with each other.
To avoid common traps in cyberspace, employers should seek legal counsel when developing a policy that outlines the accepted use of social media in hiring decisions, as well as firing decisions. For instance, while there may be certain circumstances where an employer can terminate an employee for his personal online communication performed off-the-clock and outside the office, there are other circumstances where an employer cannot take such adverse action.
A public employer generally cannot prohibit its employees from engaging in private communication that is protected by their First Amendment right to free speech. Similarly, an employer generally cannot fire employees for online discussions with co-workers about the terms and conditions of work, such as how much pay each employee at the office earns.
A proper social media policy has two important benefits. First, a proper social media policy helps employees to align their conduct with the company's expectations. Second, a proper social media policy helps the company to support a decision to reprimand an employee as appropriate under the expressed standard.
Employees left to question the cause of their termination are often the ones who also decide to visit the Equal Employment Opportunity Commission or the Colorado Civil Rights Commission to explore filing a discrimination charge and/or the NLRB to file an unfair labor practice charge against their employer.
Troy Rackham is an employment law attorney with Fennemore Craig. He holds the highest rating awarded by Martindale-Hubbell® Law Directory as an AV® PreeminentTM Lawyer and has been selected as a "Rising Star" by Colorado Super Lawyers in 2009, 2010 and 2011. Reach Mr. Rackham at firstname.lastname@example.org.