By Elizabeth Rice, SPHR
The overwhelming phenomenon of social media sites such as Facebook, MySpace, and LinkedIn has alternately sparked excitement, concern, and controversy among businesses everywhere: excitement about the abundant marketing opportunities these networks provide; concern about the growing lack of image control companies have as a result; and controversy over whether or not today’s employees are spending too many of their work hours socializing online, and fewer hours actually working.
Like it or not, social media is here to stay. And some savvy employers are making the most of it with an “if you can’t beat ’em, join ’em” philosophy toward social networking sites, blogs, online videos, and more. Rather than viewing these outlets simply as a threat to employee productivity and company image, these businesses have begun utilizing social media as a helpful (and free) tool for screening potential job candidates, checking up on new hires, and monitoring current employees.
But are these screening techniques legal? Below is a look at both the benefits and liabilities of using social media to monitor prospects and employees.
Social Media as the New Background Check
It’s long been suspected that employers use social networks to take a “behind the scenes” peek at job applicants, but just how common is the practice? The answer, according to a recent report by CareerBuilder, is very common: nearly half of employers surveyed said they use sites like Facebook, MySpace, Twitter and LinkedIn to research potential hires. Furthermore, 35% of survey respondents said they decided not to offer a job to a candidate based on the content uncovered in these searches. Among the most frequently-cited reasons for not hiring these prospects were the discovery of provocative photos, references to drinking and drug use, poor online communication skills, and online bad-mouthing of previous employers.
Checking prospective hires via social media has become so commonplace, in fact, that it recently inspired the launch of a new startup company called “Social Intelligence.” The company, which launched in September 2010, provides a screening and monitoring service that tracks an individual’s social media activity on various networks, and then screens it for employer-designated red flags like gang involvement, drug use, and demonstrations of potentially violent behavior. According to Forbes, Social Intelligence “is essentially taking the traditional background checks commonly used by corporate HR departments…and moving them online to track social media networks.” The company’s reports filter out legally sensitive information such as sexual orientation, race, or religion, and the data is manually reviewed before being distributed to prospective employers. Social Intelligence’s CEO Max Drucker says that the service helps companies perform due dilligence with regard to hiring and risk management, while protecting prospective employees from discrimination.
And social media monitoring isn’t just limited to job applicants; some companies are using it to check up on current employees as well. Accodring to a 2009 survey from the American Management Association, 52% of U.S. employers have fired employees for email and web violations. Stories are widely circulated about instances when an employee has been disciplined or even terminated for posting negative content about an employer on social media outlets like Facebook and personal blogs. Companies claim these actions provide legal grounds for termination, arguing that such content is damaging to their corporate image and negatively impacts business. Notable examples include the 2009 instances in which employees of fast-food purveyors Domino’s and KFC took video and photos of their unsanitary use of the restaurants’ food and equipment, posted the material on YouTube and MySpace, and caused an overnight uproar (for which all employees involved were immediately fired). Meanwhile, other employees have been caught red-handed when, after calling in “sick” to miss work, they subsequently (and foolishly) posted online updates and pictures of themselves spending the day at a party or on vacation. For example, acccording to New York’s Daily News, more than a dozen Department of Education employees were recently fired for “faking illnesses to take vacations.” Among the clues that tipped off coworkers and administrators were vacation photos the offenders had publicly posted on their Facebook profiles.
Staying Aware of the Legal Pitfalls
Though social media can undoubtedly be used to a company’s advantage, employers must also be aware of some inherent risks that come with exploring this new terrain. Because social media and the so-called “blogosphere” are relatively uncharted territory for the workplace, the law is currently racing to keep pace with what is and isn’t legal when it comes to screening, while large companies are hurrying to develop written employee policies pertaining to social media. The good news is that, for now, much of the judgment about social media falls in favor of employers. A recent report by the Ocala Business Journal attests that checking social media sites and making subsequent hiring or termination decisions about employees and prospective hires is well within a company’s legal rights, because an employee could potentially affect an employer’s reputation. According to the article, “employers doing background checks [often] ask if it’s legal to check social media sites to find out more about potential employees. It is.” Employees questioning the validity and legality of these searches are typically told that, although the actions posted online may have been performed off the clock, they still have the capacity to affect a company’s reputation. “One major impact of social media is the line between professional and personal lives has blurred,” the article says. “Social media is impacting hiring as well as termination.” Likewise, Social Intelligence CEO Drucker attests that his company’s methods are compliant with the Fair Credit Reporting Act, and that the onus falls on the employee or job seeker to use discretion in posting anything online. “People need to exercise good judgment and understand that what they post publicly is public, and an employer has a right to know about it,” he says.
When it comes to searching an employee or prospect’s social media presence, the legitimate risk for employers lies in potentially violating anti-discrimination and privacy laws. According to the National Law Review, “an employer’s examination of an employee’s or potential hire’s social network sites may provide the basis for claims under employment discrimination statutes if the employer used [these] methods to seek out information that was legally protected in some way.” Such legally protected data includes religion, ethnicity, political affiliations, gender, or sexual orientation: all information that is readily available on many Facebook profiles. “If plaintiffs can show that they were discriminated against in the hiring process, or wrongfully terminated based on information gleaned from updates on Twitter, pictures on Facebook, or accounts on their personal blogs,” the National Law Review asserts, “the employers will surely be held liable under the pertinent anti-discrimination statutes.”
Another employer risk is gaining information online by engaging in what is known as “social engineering:” manipulating an individual into granting access to his or her otherwise private online networks. When it comes to social media, examples of these spy techniques might include trying to “friend” an individual on Facebook for the purpose of looking at his or her otherwise private, personal information, or requesting access to a password-protected blog not accessible to the general public. In these cases, an employee or prospective hire may allege that such actions constitute an invasion of privacy, since the employee or applicant has demonstrated a reasonable expectation of privacy with respect to their social media accounts by protecting them with passwords and making them accessible on a case-by-case basis.
In summary, employers who aren’t already doing so may want to begin exploring social media as a potential vetting tool, while keeping in mind that the laws pertaining to these practices could change as social media continues to find its place in the workforce. Perhaps more importantly, employees and job seekers should pay careful attention to what they choose to share publicly online, taking to heart the old adage that “some things are better left unsaid” – or, in this case, unposted.
About the Author: Elizabeth Rice, SPHR, is the President of Innovative Employee Solutions , a San Diego-based company specializing in nationwide payroll and HR administrative services for the contingent workforce. Ms. Rice has more than 25 years of experience in HR and executive management.
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