Social Media to Take a ‘Poke’ at Potential and Current Employees

Facebook, MySpace, Twitter – these are just a few of the social media sites people use around the world to share pictures, reconnect with old friends, and communicate ideas and thoughts about various topics for discussion without repercussions, except businesses are now using information gleaned from social media sites to make employment decisions. The dispute of using social media sites like Facebook is not entirely new to the past couple of years; debate over the topic began as far back as 2006, as educators and government recruiters began to use it in employment decisions (Go). As more employers became knowledgeable about Facebook, they decided to use it to aid in employment decisions.

Businesses are using these social media sites as a basis for more thorough research on potential employees, in addition to drug tests and traditional background checks. These companies feel that by utilizing all the information available to them, they can eliminate prospective employees that would be considered a ‘bad hire’. They can also eliminate current employees that may pose problems in the work place. With social media, they have access to more information to make more accurate decisions. Various surveys have found that, “anywhere from 18 to 63 percent of employers review social media sites to assess job candidates” but that only, “7 percent of those surveyed in this country realized employees might peruse the data” (Johnson). However, the use of social media sites is debatable because it is often a violation of employee’s rights.

Current employees run the risk of termination for their behavior on Facebook is caught breaking their company’s social media policy. Complaining about your job, your supervisor, or other employees can lead to your termination. Employees have been fired after posting comments about their jobs in a negative fashion, such as the five employees at Hispanics United, a nonprofit in Buffalo, New York. One employee posted a comment about something another employee had said and asked for feedback from other employees, whose replies involved a negative discussion about their workloads and working conditions. These employees were then fired. However, in this case, the employer was in the wrong. After the case was presented to an administrative law judge, the Facebook discussion was deemed as a protected discussion under the National Labor Relations Act, and the five employees were reinstated and rewarded back pay because they were not defaming their employer, only discussing working conditions(Singletary).

The National Labor Relations Act, or NLRA, is just one of the considerations that an employer must take into account before using an employee’s behavior on social media as a decision towards discipline. The NLRA “allows employees the right to engage in protected activity without fear of retaliation. Workplace complaints to other co-workers about terms and conditions of employment can fall into the category of ‘concerted activity’” (Ackermann). Employers also need to consider the NLRA when creating a social media policy to make sure that they are not restricting the NLRA rights of their workers. This does not mean, however, that employees can defame their employers or supervisors freely – those actions would not be considered protected and will most likely lead to termination.

Other employees, both potential and current, run the risk of being judged by their non-work related activities, such as posting offensive jokes and opinions concerning race, gender, sexual orientation, or other derogatory remarks. Potential employees posting offensive comments about these topics are likely to be rejected as candidates. Current employees, especially managers, posting these comments may result in not only disciplinary action, but losing their jobs and even lawsuits against them or their company of employment. In February of 2012, a tweet made by CNN analyst Roland Martin caused his indefinite suspension. The tweet about David Beckham’s commercial was viewed as anti-gay insult and the Gay & Lesbian Alliance Against Defamation insisted on Martin being removed from the network and CNN quickly complied (Rhone). A radio personality in Atlanta, Georgia, Chadd Scott, was fired from his position after tweeting disparaging remarks about Delta Air Lines delays when the company threatened to pull their advertising from the station if he did not stop the tweets (Rhone).

Potential and current employees are often viewed by other content on their social media pages, such as pictures or posts about them partying, drinking, or smoking. Employers should carefully consider whether their state has laws that protect against off-duty behaviors that are considered lawful activities. These laws protect off-work activities such as the use of tobacco and alcohol, and union organization because these are completely legal activities and can not be held against employees (Ackermann).

Another issue that arises from the use of social media as an employment tool is the access that it allows employers into the personal lives of its employees; much of the information viewed is protected under anti-discrimination laws. Information made available on these pages often discloses race, gender, religion, and sexual orientation, which are protected classes by law and are not to be used in the hiring process (Mason). Also accessible is an applicant’s genetic information and medical history, protected by the Genetic Information Nondiscrimination Act of 2008, or GINA. GINA provides restrictions on employer’s permission to this information so that it cannot affect employment decisions (Ackermann). “If you have that information and if it goes into the decision making process, that would be illegal,” says Deborah Schmedemann, a William Mitchell law professor (qtd. in Phelps).

This issue of access to information that is barred from employment decisions became even bigger as companies are now pressing potential employers for their Facebook passwords, which many view as an intense violation of privacy akin to an employer asking to open a person’s mail or inspect their home before hiring. By viewing all information available on a Facebook page, employers are putting themselves even more at risk of viewing potentially discriminating information. If a potential employee declines to provide the password or allow the company access to their page while being interviewed, they are disqualifying themselves. Various Illinois sheriff’s departments ask that potential employees login to the Facebook page so their information is screened carefully. This has caused so much controversy that two U.S. Senators, Richard Blumenthal and Charles Schumer, are presenting a bill that would stop employers for asking for login information. Facebook is also taking a stand against this practice, as it violates their terms of service to share login information (“Employers go too far”).

An employer using social media in the employment process is understandable, especially in jobs that concern the government, education, and public safety. These employers only want use it to provide a better work environment because it allows access to more information, helping them in their decisions to hire employees that are dependable with good work ethics and avoid those with bad work ethics or are involved in illegal activities. Not only is it helpful to employers, it can help potential employees connect with a company. Social networking allows employees to present a respectable image to employers, promote their skills and talents, as well as previous work history, better than just a resume.

In many cases, the use of social media often allows for an unfair misinterpretation or infringement of the rights of current and potential employees. Because of this, employees should maintain a social media page that allows employers to see them the way they want to be seen as professionals and avoid defaming employers; employers should limit their use of social media as a tool in employment decisions or even consider discarding it altogether. After all, employment decisions have been made for years without it and by using the reliable process of interviews, reference checks, drug tests and background checks, employers can hire dependable employees and not worry about infringing on the rights of its employees.

Works Cited

Ackermann, Sara. "Labor: Who is GINA, and what does she have to do with your Facebook page?." Inside Counsel (2011): n.pag.LexisNexis Academic. Web. 15 Apr 2012. This article from the Inside Counsel discusses the three laws that can hurt employers using Facebook for employment needs: Genetic Information Nondiscrimination Act, the National Labor Relations Act, and Lawful activities laws.

Go, Allison. "Facebook Follies Can Hurt Your Job Prospects." USNEWS.com (2006): n.pag. LexisNexis Academic. Web. 15 Apr 2012. This article discusses the need of student’s to go private as early as 2006 to avoid employment hazards due to their Facebook page.

Johnson, Steve. "Those Facebook posts could cost you a job." San Jose Mercury News (2012): n.pag. LexisNexis Academic. Web. 15 Apr 2012. This article discusses concerns of both employers and employees about Facebook being used in the employment process.

Phelps, David. "HR and Facebook: It’s complicated; Companies that use social networking sites to screen applicants could be breaking the law." Star Tribune (2010): n.pag. LexisNexis Academic. Web. 15 Apr 2012. This article discusses the laws that employers may infringe on when using Facebook to help in employment decisions.

Rhone, Nedra. "SOCIAL MEDIA: With iffy tweets, job can delete." The Atlanta Journal-Constitution (2012): n.pag. LexisNexis Academic. Web. 15 Apr 2012. Nedra Rhone’s article is about various instances and examples of how social media has caused individuals to lose their jobs.

Mason, Joni F. "Myspace, Yourspace: What Every Employer Should Know." Property and Casualty 360 (2011): n.pag. LexisNexis Academic. Web. 15 Apr 2012. This article discusses the risks of using social media in the discipline and employment decisions and what laws may be broken, as well as considerations when drafting a social media policy in the workplace.

Singletary, Michelle. "Can complaining about your job on Facebook get you fired?." The Washington Post (2011): n.pag. LexisNexis Academic. Web. 15 Apr 2012. This article discusses the case at Hispanics United as well as what would be protected and unprotected by the National Labor Relations Act.

“Employers go too far by demanding passwords.” Chicago Sun-Times (2012): n.pag. LexisNexis Academic. Web. 15 Apr 2012. This article discusses privacy rights, as more employers ask for passwords or want employees to login to their Facebook pages for screening.