Tag Archives: prospective employees

Social Media Employment

Social Media Series: Using Social Media In Hiring And Firing Employees

This article is part of an on-going, social media series.


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 on social media?

 

Prospective employees generally know that they should scrutinize their online presence so as not to have their resume hit the trashcan 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.

Businesses should 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 on 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) in that 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.

In an effort 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.

Such a social media policy has two important benefits: it helps employees to align their conduct with the company’s expectations and it 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 to explore filing a discrimination charge and/or the NLRB to file an unfair labor practice charge against their employer.

Carrie Pixler, an associate with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

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Social media sites are no longer just places to reconnect with childhood friends or college roommates.

Social Media And The Hiring Process: Your Profile Can Sink Or Save You

Social media has set up camp in the professional world and is there to stay.

Social media sites are no longer just places to reconnect with childhood friends or college roommates. Companies now use social media websites to do unofficial background checks on potential employees.

A Cross-Tab Marketing Service study, released earlier this year, reveals that 70 percent of companies have rejected a candidate based on an inappropriate social media website posting.

This is a scary reality for everyone who uses these sites as a harmless way to catch up with friends, but may have crossed the line by uploading funny, yet work-inappropriate pictures. In today’s world, a world inextricably tied to the Internet, anything posted on a public page can and will be found by potential employers, says Lew Clark, an attorney with Squire, Sanders and Dempsey.

However, there are ways to prevent shooting yourself in the social media foot and, if you’re smart, work the system.

There are a few obvious things not to have on Facebook, MySpace, Twitter, YouTube or other social media websites — including inappropriate photos or conversations. Poor grammar, spelling or writing skills, use of profanity, and poor people skills also can turn off a potential employer, Clark says.

“One of the huge no-nos that we discuss with folks … is to never, ever post anything negative about a former boss, co-worker, employer. It creates the wrong image. No matter if it’s true, valid, anything else, you just do not want to go there,” says Cindy Jones, vice president of human resources at Synergy Seven.

Don’t despair. Companies aren’t just looking for reasons to disqualify you. They’re also looking for reasons why you’re perfect for the job, Jones says. Especially on professional social media sites, such as Linkedin, companies look to see prospective employees’ connections.

If used properly, social media can be an effective marketing tool, Jones adds, providing a real-world example of how to use social media as an advantage.

When a woman decided to switch careers from Realtor to sommelier, she changed both her professional — Linkedin — and personal — Facebook — social media pages to reflect her new career path. She posted her excitement about passing tests toward receiving sommelier certification and changed her main picture to one of her toasting with a glass of wine.

While this type of online makeover won’t work for all fields, Jones says it’s an example of using social media to one’s advantage.

“There’s nothing at all improper with a prospective employer (looking) on someone’s public Facebook page, their public Twitter page, or any other online networking website that you can access publicly,” Clark says.

However, accessing a potential employee’s private page by figuring out the password, accessing it through someone else’s page or by pretending to be someone else is illegal, he adds.

Aside from accessing a page illegally, employers can find themselves in other sticky situations.

Employers may find information about a person’s religion, health, age or personal life that they wouldn’t otherwise learn and can’t legally take into consideration in the hiring process, Clark and Jones say.

“The risk to the employer is that someone could allege that you used information that is legally protected to decide whether to hire somebody or not,” Jones says. “Our guidance with most companies starts at the place of there’s nothing illegal about it, but be careful.”

Clark adds: “Employers are looking for whatever resource they can to try to get information about candidates so they can make a good hire.”

Background checks, including checking social media websites, can reduce costs, encourage honesty among employees and ensure the best person gets the job, says Marcia Rhodes from WorldatWork, a global human resource association.

Although using social media in the hiring process offers many perks, Jones and Rhodes say they’ve seen a trend in which companies are limiting social media background checks on possible employees, contrary to the report previously cited.

Kim Magyar, an attorney with Snell and Wilmer, says she doesn’t see the number of companies using social media decreasing, but companies are being more targeted and cautious with their searches.

Some companies wait until they’ve already interviewed a candidate to check social media, while others check before they conduct an interview, says Magyar, who has given presentations on social networking and the workplace.

Many companies believe social media can be a treasure trove of information; information that might not always be accurate, Magyar says.

“There’s nothing to prevent an employer from making decisions based upon what they see (on social media sites),” Clark says.

Nothing, except the awareness that public social media pages are fair game and the preparedness of prospective employees to maintain their pages in a way that represents them in a respectable, hire-able way.