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Posted: July 28, 2011

Hiring and firing: How social media fits in

There are questions employers should consider

Troy 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.

Firing

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.
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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 trackham@fclaw.com.

 

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Readers Respond

The issue most potential employees or contract employees is the heavy handiness of some companies regarding social media and people's non work hours. I personally know of one individual where the HR department asked a worker who was a writer during non work hours sign a document stating she would never, for all intents and purposes, "embarrass" the company. She wrote a novel under an assumed name about a subject that did not even come close to her job description or the company's business. She asked about her novel and they said it came under the document and she would have to stop selling it as this was an "embarrassment" to the company. She refused to sign it and she was fired. Another individual I know personally who was also under the "heavy hand" of the CEO and HR regarding social media left the company and that company's image is now damaged. This perceived "zero toleration" of people's non work hour activities, barring illegal or unethical ones, is one where some companies need to reevaluate their policies. Most companies do not realize creating a zero tolerant policy for some offenses (such as a person's rights under the first amendment, etc) will backfire on heavy handed organizations with employees once social networks find out, versus policies that are more reasonable. Here's just one example of a site that employees tell of company cultures http://www.glassdoor.com/index.htm There's also the story about Glen Busch who worked at Coats for Kids non profit and was fired and then rehired after the backlash of his firing by the public. A social network motto: Do unto others as you would have them do unto you, whether you're a CEO, HR, or an employee. By Kevin Cullis on 2011 07 31
Having a policy in writing is a good practice, but I'd advise that it needs to be specific with regards to "which" social media networks can and cannot be used. For example, in most industries, it's now standard practice to research a candidate on LinkedIn - in fact, it is now possible to include a button on an online job listing that allows an applicant to submit their application directly, using their LinkedIn Profile. In addition, jobs that are listed on LinkedIn have this ability. As Doug mentioned, there are several third-party companies that can search someone's "online reputation", scrubbing out data such as religion, marital status and so on prior to providing to the hiring entity. However, many companies use sites such as Twitter and Facebook to post jobs, so these sites will be used. It gets very tricky to say what can and cannot be done. By Deb Krier on 2011 07 28
Having a written internet usage policy, reviewed by a legal team, is a great way to avoid any issues regarding employees'internet usage. As far as companies using the internet to collect data on an applicant; using a third party vendor, like Tandem Select, to conduct a legally compliant social media background check is the best way for hiring companies to mitigate their risk in this area. A signed Release and Disclosure statement is obtained from all applicants. This document gives the third party vendor the applicant's permission to run the check. The results of the check redact or block any protected class information, this protects both the potential employer and applicant from unfair hiring practices. Tandem Select's social media background check searches for only job relevant data and reports both negative and posditive attributes of the applicant. Negative attributes such as corporate disparagement, drug references, sexually explicit material and racist statements can be uncovered. Positive attributes such as community involvement, professional papers and volunteer activities can also be found. Tandem Select is a 17 year old, Fort Collins, CO. based company that performs both traditional and social media background checks in compliance with the Fair Credit Reporting Act. Please contact me, Doug Hay, at 970-491-9655 ext. 317 if you would like more information. By Doug Hay on 2011 07 28

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