Posted: August 01, 2011
Hiring and firing in the Facebook age
Social networking and employment law are still forging a working relationshipEric Peterson
More than a few jobs have been lost because of posts on Facebook. In fact, there is even a Facebook Group called "Fired By Facebook" dedicated to the concept.
Waitresses have been fired for complaining about customers. Firefighters and airline employees have been fired for questioning management policies. An employee of the Philadelphia Eagles was fired for colorfully criticizing the team's decision to let All-Pro safety Brian Dawkins become a Denver Bronco.
But there are legal implications to firing (or not hiring) someone for what they have posted on Facebook or another online social network, and the courts and relevant federal agencies have yet to definitively sort out the confluence between social media and employment law.
One of the first definitive decisions came from the Federal Trade Commission in June when it gave a thumb's up to Social Intelligence Corp., a pre-employment screening firm in Santa Barbara, Calif. The FTC decided Social Intelligence's background checks that cull seven years of a subject's online activity were in compliance with the Fair Credit Reporting Act.
"The laws on this are evolving," says Jerry Thurber, president of Tandem Select, a pre-employment screening-services firm in Fort Collins. "There's a lot of different things through the court systems about what you can and can't access and what you can or can't do." Thurber believes it could be 2016 before the law is concrete on hiring and social networking. In the meantime, he advises employers to practice some restraint.
"All of these people who say, ‘This guy didn't get a job because he had a party and posted photos of it online,' I think those people deserve to be sued," Thurber says. "It's totally irrelevant."
While he feels hiring managers need to be careful, Thurber does not believe employees and job candidates should avoid Facebook and other social media until the Supreme Court renders a decision on the subject. Far from it: He sees it as a great tool for the employee, if not always the employer. "I'm a firm believer people are applying a 1990s mindset to social networking," he says. "It's fear-based rather than opportunity-based."
Big Brother aside, "Most people in their 20s and 30s, and even in their 40s and 50s, see social media as a way of enhancing and building their careers," Thurber says. "You're kind of building ‘Brand You.'
"What we see in today's world as recruiters, it's not too uncommon for people to add their Facebook page to their résumé," he adds. "Social media has created an outstanding way to show who you are in a far broader picture than a page-and-a-half résumé."
Thurber doesn't think such a thing is a bad idea. "I think you can have your cake and eat it, too. The key is to keep your social and professional lives separate, no matter what social network you're using," Thurber says. "But you should be aware the things you say and make public can be searched."
Thurber says Facebook, LinkedIn and other purveyors of social media allow users to segregate friendships into different subsets, but most people don't utilize these features.
While Thurber advises job candidates to resist fear, he says employers should not give in to temptation and look up current, former or potential employees on social networks - something that as many as 80 percent of hiring managers do. "The problem is that it's fraught with potential for EEO discrimination and privacy violation. What we're saying is you've got to stop informal use of social media and apply a formal HR policy so all applicants are treated as equals."
Natalie Dodson, director of human resources and senior HR consultant with Xcel HR, a national HR services firm headquartered in Rockville, Md., agrees. "You have to be very careful," she says. "Once you know something, you can't unknow it, and you're legally bound not to discriminate."
Dodson believes social networking opens a can of worms when it comes to hiring and firing decisions. "Seeing something you'd rather not have seen can introduce an inner conflict that compromises your ability to see the next rational step," she says. If an executive sees an employee post "I hate my job" on Facebook, for example, "That goes under the category, you can't unknow it. That isn't an actionable statement."
And if a discrimination suit heads to the courts, that can of worms continues to wriggle. "It's really hard to prove a negative," Dodson says. "It's difficult to prove you didn't pass up your employee for a promotion because on their social media site they indicated their religion."
Not that social media doesn't have its place in the HR universe; it's just not at the center of it. "We're stepping back and saying it's all about relevance," Thurber says. "The tools of the future have to filter out irrelevant information that isn't job-specific. The challenge for us in the background screening industry is to create those filters."
Tandem Select has a "human intervention-based" screening method by which companies can screen an applicant's social-networking activity for up to seven criteria, including racist language, inappropriate discussion of previous employers and sexual content. The manual search precludes the hiring manager from getting on Facebook and seeing something they'd have rather avoided.
"For me, it's just part of the toolbox," Thurber says. "You shouldn't make a decision based on one little piece of information on a person in a social network."
For Xcel's Dodson, the moral of the story is, "Don't friend your subordinates, and don't recommend people - not even on LinkedIn." The latter can send mixed messages that may not be defensible in court, she says. "It's a good idea to have a policy that your managers do not provide any references," Dodson says. "Route references through one person or a designated group. A company can be held responsible for saying an employee was wonderful if they happen to be fired. It can be perceived that message came from the company."
Likewise, any posting on a company's Facebook page "should be carefully regulated," Dodson says. "There should be guidelines for everything." Such guidelines should be reviewed by an attorney every three years, she adds, to keep up with technological change and innovation.
Dodson highlights other concerns including the usage of social media in the workplace and disclosure of proprietary media through social media, accidental or not. The former can't be addressed with a firewall, not in the era of smartphones, she notes, adding that it's not even clear that use of social media at work detracts from productivity in any way. "The jury is still out."
"The key is education," Dodson says. "There doesn't have to be a policy for everything, but there should be good, clear communication with employees about expectations. You want to be the responsible employer.
"Embrace technology and don't jump to conclusions," she says. "Stick with the basics: education, communication and performance management. Don't go with your gut. You want all your employee decisions to be performance-related."
But if you must friend your subordinates on Facebook, Dodson has one last piece of advice: "You must be willing to let some things go. You might have to practice some deference."
Denver-based writer Eric Peterson is the author of Frommer's Colorado, Frommer's Montana & Wyoming, Frommer's Yellowstone & Grand Teton National Parks and the Ramble series of guidebooks, featuring first-person travelogues covering everything from atomic landmarks in New Mexico to celebrity gone wrong in Hollywood. Peterson has also recently written about backpacking in Yosemite, cross-country skiing in Yellowstone and downhill skiing in Colorado for such publications as Denver's Westword and The New York Daily News. He can be reached at Eptcb126@msn.com