One can apply the old saying, never
judge a book by its cover to many applications in life, but today’s environment
of social media and instant status updates provides personal transparency never
experienced before. Social media’s
arrival on the scene has completely changed the way we interact as a society
and technologies such as portable devices and wireless connectivity allows us
to communicate faster and to a more massive crowd than we ever thought
possible. Social media is the most
significant difference in personal or business transparency and has merged into
an indistinguishable haze of likes, links, and posts, making transparency an
everyday issue. Complete strangers can
now view someone’s daily activities without the context of knowing them
personally. These strangers can easily
be potential employers seeking employees to fill vacant positions. That is precisely what is occurring today; employers
are examining beyond applicants’ resumes to make the best hiring decision by
reviewing prospective employees’ social media sites to learn more about their
applicants and employees. Alternatively,
employers are experiencing legal issues with their new social media tool, and
the courts are just beginning to unravel them.
Correctly used, social media can be a
powerful means of candidate identification, selection, and retention. However, employers must have comprehensive
and compliant social media policies that are not overly broad, and which
address privacy, lawful access, accuracy, equal protection, and conduct of
employment practices. An analysis of the
social media transparency regarding employment reveals an employers’ review of
applicants and employees’ social media sites can be a valuable tool but must do
such in a manner consistent with legal hiring and separation practices. This article is designed to review essential
aspects employers should consider when using social media to make hiring or
termination decisions for their company.
There has been an explosive growth in
the use of social media over the past decade and has allowed a vast part of the
world’s population instant, quick, and convenient communication to a broad
network of people. According to
Statista.com, known as the portal for statistics, Facebook had 100 million
monthly active users in 2008, and that number has skyrocketed to 2.07 billion
monthly active users as of the third quarter of 2017. LinkedIn has over 467 million members
worldwide, and it is one of the most popular social networks regarding active
users (Statista.com, 2017). These top growing
websites allow their users to share lots of information about themselves and
can give potential employers data in just a few clicks that would be impossible
to know about someone decades ago.
Social media has forged a path into
our culture that has brought us all closer, but it has also opened many
questions about the issues of modern expression and privacy. Getting at the center of this network
involves untangling multiple layers of complex statutes, case law, and agency
guidance in a way that balances the pillars of freedom of speech and the
at-will employment doctrine. For
edification, the employment-at-will doctrine states employees without a written
employment contract and an indefinite term of employment, the employer can
terminate the employee for good cause, bad cause, or no cause at all (Ballam,
2000). Although a perfect application of
the law on society’s new technologies like social media is complicated, there
are many considerations employers must make based on privacy, accuracy, and
lawful access during the hiring, employment, and termination periods. Moreover, employers need to understand there
is a potential negative impact with the use of social media when recruiting employees,
and conversely, the termination of employees based on decisions issued by the
National Labor Relations Board (NLRB).
Last, employers’ must relate legal guidelines to their company’s use of
social media policies.
The First Amendment to the Bill of
Rights explains our rights as Americans very clearly:
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government
for a redress of grievances.” (The Bill
of Rights, 2017)
Strict libertarians or constitutionalists
may notice, the words “right to privacy” are absent from the First
Amendment of the Bill of Rights. Under
the First Amendment, there is no right to privacy, but there are certain
privacy protections afforded to every citizen.
Pawel Laidler, author of Basic Cases in U.S. Constitutional Law: Rights and Liberties, references Griswold v.
Connecticut and suggests, “Specific guarantees of the Bill of Rights have
penumbras” of privacy extending to specific areas and situations (Laidler,
2009, p. 102). The courts have started
to make their decision on what is the reasonable expectation of privacy for applicants
or employees, but employers and the public at large are still making their own conclusions.
Most social media websites include
privacy settings and controls to allow users to reduce exposure to those whom
they wish to exclude from seeing their social media information. However, specific information such as their
name, profile picture, and networks is typically always publicly available, and
social media sites often provide notice to users that they do not guarantee the
privacy of the information (Facebook, 2016).
inability to ultimately secure any information submitted to their website, nor
can they guarantee users’ information will not be accessed or disclosed by
physical or electronic methods (LinkedIn, 2017). Despite these numerous warnings about privacy
disclosure, users should expect a certain level of privacy when they correctly
use the privacy controls.
When social media was still in its
infancy, employers would ask applicants or employees for their social media
login information to allow the employer direct access. This practice quickly died as social media
websites, legislators, and privacy rights activists alike actively discouraged
the practice (Dame, 2014). Today, most
states have passed laws preventing employers from requesting social media login
credentials. For example, Vermont State
Law (H.B. 462) “prohibits an employer from requiring or requesting that an
employee or applicant disclose personal social media account information”
(NCLS.org, 2018, para. 26). Overall, the
only reasonable access employers should have to an applicant or employee’s
social media is what they allow them to access via privacy controls. A social media user who selects open public
access to their accounts or invites or accepts potential employers to
“friend” or “connect” allow an additional level of access
and substantially reduces the expectation of privacy with an employer or
organization. Naturally, employers can
take criminal actions such as hacking or using another’s authorized login
credentials to gain access to personal social media pages fraudulently, but the
courts would not view these tactics favorably if it were a part of a more
Beyond the concern of personal
privacy, employers must also ensure the information found on a private social
networking site is accurate, and it is the correct person who applied for the position
or the employee who works for the company.
Employers must ensure the James Smith Facebook profile they find is the
same James Smith who applied for the job and not one of the other 38,312 James
Smiths in the United States (Chen, 2015).
Employers must also consider whether the person portrayed on the social
media site established the account himself or herself or if someone else
created the page without their knowledge or permission.
Employers can outsource an applicant
or employee’s social media information review to a third party Consumer
Reporting Agency (CRA) to help overcome some of the challenges listed
above. The Consumer Fair Trade
Commission (FTC) outlines particular information regarding the search of a
person’s character or reputation on a social media site. The FTC’s stance is that when companies use a
CRA to conduct a background check on an applicant or employee’s social media
sites, that it complies with applicable provisions of the Division of Privacy
and Identity Protection (FTC.gov, 2016).
Additionally, Tony Rodriguez and Jessica Lyon from the FTC explain
companies must be vigilant because a CRA may comply with all expressed
provisions of the bureau and still violate other laws, such as equal employment
opportunity violations (Rodriguez & Lyon, 2013).
With the understanding of privacy and
accuracy, employers have two significant concerns when deciding to use social
media for recruitment. The first concern
is the influence social media has on candidate sourcing and statistics and the
second is the limitations of viewing candidate or employee information on a
social media site.
It is essential to understand that
for the first time in the Pew Research Center’s surveys history, the results in
2017 showed 55% of Americans ages 50 or older use social media sites for
everyday tasks such as getting news updates.
This increase in usage is a 10% spike over 2016 allows employers to see
and contact a more substantial part of the population, but there is still a
disconnect between race and between gender demographics use of social media (Shearer
& Gottfried, 2017). The Pew Research
Center shows employment social media websites such as LinkedIn have equal
shares of whites (29%) and blacks (28%), but only 18% of Hispanics use the
network. Gender has improved over the
years, but there is still a gap of almost 10%.
A staggering 72% of women in the United States use some sort social
media contrasted with 66% of men. The
most dramatic difference between demographics is in education. Only 59% of people with a high school
education or less use social media, but 78% of college graduates use at least
one social media website (Pew, 2017).
Recognizing the disparities with using social media to decide employment
is critical because the gaps could potentially fuel cases of discrimination
even when the employers had no subjective intent to discriminate. In addition to traditional avenues of
attracting and finding diverse applicant pools, employers should use a variety
of sourcing strategies across multiple social media outlets to avoid the
potential statistical traps and pitfalls.
The limitations of viewing candidate
information on social media sites is also essential to consider when deciding
hiring or during employment. A social
recruiting survey by Jobvite, a recruiting platform for the social web, reports
from their survey of recruiters that 92% of U.S. companies are using social
networking sites for hiring purposes (Jobvite 2012). Employers should be forewarned and take reasonable
steps to ascertain accurate information and to be aware a picture can be worth
a thousand words, but it can paint an inaccurate picture. An employer using social media as a primary
tool may be left with skewed data and a false narrative. Knowing this and the above information,
employers must understand that making decisions from viewing social media posts
can unintentionally make those decisions appear demographic based rather than
merit-based. Unfortunately, these
perceptions, true or false, may be enough to flag a particular hiring practice
that could end in a costly course of litigation.
Knowing the two primary concerns of
using social media for employment decisions is essential, but so are the
possible legal implications of using these methods. Communication at work and home has
transformed dramatically over the years, but the legal theories behind
established employment policies have not changed. Today’s challenge is to apply traditional
laws to today’s instant, casual, broadcast style of social media communication
and activities. For many years, courts
were not concerned with how many “likes” an employee’s Facebook
work-related comment received. Moreover,
the courts did not have to consider the average employee might have the ability
to convey their opinions to an average of 634 people with one click of a button
on Twitter (Leonardi, 2017). Social
media transparency can easily create situations where employers terminate
employees because of posts or comments employers find on their social media
Employers must look carefully to both
an employee’s conduct as well as their company policies in determining whether
circumstances legally warrant termination.
The National Labor Relations Board (NLRB) is a long-standing government
agency that is inexplicably involved ensuring the correct implementation of the
law to social media caused terminations (NLRB.gov, n.d.).
Employers need to be aware of
protected activity on social media before taking any adverse action against
employees who post on a social media website.
For example, the “federal whistleblower protection law provides
legal remedies for employees or job applicants who face retaliation for making
protected disclosures of fraud, waste, abuse, mismanagement, or substantial and
specific danger to public safety or health” (OPM.gov, n.d. para. 2). Outside of protected reporting, using social
media for collective dialog and shared concerns about essential terms and
conditions of employment are also protected activities (NLRB.gov, n.d.).
An employee, however, otherwise
engaged in a protected activity, can lose that protection by abusive conduct
(Stewart, 2017). Michael Green’s journal
article titled, Protecting Unhappy Worker Outbursts from Discriminatory
Treatment, does a great job of explaining the method used for determining if
the employee’s conduct is enough to cause them to lose protection. Green (2017) explains, “the NLRB’s
Atlantic Steel doctrine to assess the inappropriateness of an employee’s angry
outburst by first analyzing four factors before deciding the employee’s actions
warrant discipline” (para. 5). The
four factors include where the discussion occurred, the subject matter of the
discussion, the nature of the employee’s outburst, and whether the outburst
was, in any way, provoked by the employer’s unfair labor practice. Green does caveat the Atlantic Steel doctrine
does have its limits. Employees who
engage in threatening behavior or conduct acts exceeding what a reasonable
employer should tolerate can lose their protections under the law (Green,
2017). Social media compounds these
issues because its reach has far more impact than the typical breakroom
outbursts and is immediately heard by everyone on one’s feed.
A business’ decision to use social
media as a tool among many when choosing employees is a good idea. The best way to properly use social media for
hiring, employment, and termination is to set clear company policy and
guidance. A company’s social media
policies will not protect employers if they are overly broad or restricts
employees’ constitutional rights. When
limiting an employee’s right to communicate on social media (or otherwise), the
terms and conditions regulating their comments to being
“professional” or “appropriate” need to be clearly defined
in the policy.
Employers should specify in their
policies about what constitutes “appropriate” manners in which
employees are allowed to discuss subjects to include criticism of labor
policies, treatment of employees, and terms and conditions of employment. (SHRM.org, 2016). Employers should specifically articulate
their definition of actions that constitute insubordinate actions, inappropriate
conversation, or other disrespectful conduct.
Additionally, the policy should include their plan of disciplinary
action when employees engage in such actions.
Companies should carefully draft their social media policies to avoid
broad or ambiguous terms. A court can
easily deem policies unlawful if employees reasonably believe the policy
prohibits constitution freedoms.
All employers should take their time
when deciding to terminate current employees’ employment due to their conduct
or comments in general, but especially when considering social media websites. This article reviewed relevant aspects
employers should consider when using social media as part of the hiring or termination
process. Protected activity and overly
broad social media policies can create liabilities for employers and employers
who recruit and select employees through social media sites should carefully
monitor their processes and outcomes for disparate impacts. Employers should take care when using
information gained from social media and establish a process by which
applicants, candidates, and employee have an opportunity to dispute potentially
inaccurate information published online.
Adhering to statutory, regulatory, and agency guidance allows employers
to use social media anywhere along the employment timeline to maximize information
about applicants and current employees while protecting them from the potential
social media use pitfalls.