Dancing on the Edge of a Volcano

From hiring to harassment, social media can explode on employers.

By Jonathan A. Segal Apr 1, 2011
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There was a time when social media was cutting edge. Now it is mainstream. Case in point: Facebook has more than 500 million individual members worldwide.

As with all communication, social media presents business benefits and legal risks. This article discusses four ways social media and HR have become inextricably intertwined: hiring, harassment, off-duty disparagement and “friending” of colleagues.

For purposes of this article, social media is defined broadly to include:

  • Social networking sites, such as Facebook.
  • Video-sharing websites, such as YouTube.
  • Blogs, such as www.newsweek.com/blogs.
  • Microblogs, such as Twitter.
  • Online forums and discussion boards, such as Google Groups.
  • Other online publications.

Hiring

You can learn a lot about candidates by conducting an online search for their social networking presence. However, many employers still lack a formal corporate policy or protocol on whether, when and how such social networking background checks should occur. Accordingly, supervisors or managers could be reviewing social media sites on their own initiative.

When this occurs, there is a risk of an applicant claiming discrimination. The argument: The only reason you checked out my social media presence was because of my clear or apparent membership in a protected group.

Another risk in reviewing social media sites as part of the application process arises when the search takes place as part of the initial screening rather than later in the process. When this occurs, the decision-maker could become aware of an individual’s race, ethnicity or other protected information before he or she decides not to interview that individual. This allows an applicant to argue that he or she was screened out because of his or her race, ethnicity or other protected category. The argument would be harder for a candidate to make if the review had been done after the initial screening.

Some information that may be discovered through social networking sites should not be considered at all, regardless of when it is obtained. For example, as a result of a social media search, an employer may discover that an employee engages in certain religious activities, suffers from a medical problem or has a domestic partner. An employer is better off not knowing this information when making a decision. If you don’t know about it, you cannot be accused credibly of considering it.

With this background, here are four recommendations for how to address social media in hiring to maximize business benefits and minimize risks:

First, prohibit supervisors or managers engaged in hiring from conducting social media background checks on their own. Let them know that if your organization is going to conduct such checks, they will be done by HR professionals, presumably like all other background checks.

Second, conduct social media checks only after you have interviewed an individual and determined that he or she is a viable candidate. In this way, you limit the risk of obtaining equal employment opportunity-related information about the candidate too early in the process.

Third, make sure all candidates are subject to the same social media checks at the same point in the process. For example, you might have a policy of conducting social media checks for finalists when you do reference and other background checks.

Finally, if you reject a candidate based on what you discover on a social networking site, document what you discovered and relied upon. For example, you may have found a blog where the applicant discusses violent fantasies. It must be clear, by negative implication, what you did not consider—for instance, the fact that the candidate has a physical disability.

Harassment

Every employer has—or should have—a policy that prohibits unlawful harassment, such as sexual, racial, ethnic and religious harassment. Most policies cover, as they should, harassment via electronic communications, such as e-mail, instant messages and text messages. However, many harassment policies do not address social media; employers are well-advised to make sure that their policies do.

It is not as simple as stating that your policy applies to social media. The employer needs to consider that employees engage in social media on behalf of the employer as well as personally on their own time with their own technology.

When an employee blogs, tweets or otherwise engages in social media on behalf of his or her employer, all of the employer’s policies, including harassment, should apply. A prohibition on sexist, racist or homophobic messages while communicating on behalf of the employer is more than defensible. It is compelled.

What if the employee engages in personal social networking on his or her own time using his or her own technology? Does the employer have the right to take action against an employee because he or she has posted a racist, sexist or homophobic message?

Consider the following examples:

  • An employee posts on his public Facebook page his favorite racial “jokes.” His colleagues become aware of them and complain.
  • An employee posts on a private Myspace page his fantasies about having sex with a particular co-worker. One of the co-workers whom he has friended copies and forwards the posting to the employee. The object of his desire complains.

In both situations, the employee’s off-duty conduct adversely affects working relationships. Accordingly, the employer should have a right—indeed, an obligation—to take some corrective action.

However, the employee engaging in the off-duty conduct may have some countervailing protection that needs to be considered, too. There are three primary sources of potential protection for these employees:

First, there may be constitutional protections for the speech if the employer is a governmental entity or if the employee works in a state such as California, where the state constitution applies to private employers. However, even in these situations, the constitutional protections are not absolute.

For example, unless the speech is a matter of public interest, it may not be protected by the federal or most state constitutions in the context of the employer-employee relationship. In each of the examples above, it would be hard to find the speech a matter of public interest.

Second, if the employee is a union member who has completed his or her probationary period, the employer probably needs to prove just cause to discipline or terminate the employee. Arbitrators demand a clear nexus to the workplace before sustaining an adverse employment action based on off-duty conduct. The nexus, at least for discipline, should be present in both examples.

Finally, a number of states—including New York, California and Colorado—have statutes protecting off-duty conduct. However, it is far from clear that “harassing” postings would be protected.

Bottom line: Employers should put employees on notice that personal social networking could violate their harassment policies if it cascades into the workplace, then look at each case to determine whether and how to take appropriate corrective action.

Disparagement

Employers often complain about how much employees complain. And it appears that there has been an increase in carping concomitant with the tough economic times.

Many unhappy employees feel trapped. There are no other jobs, so they stay where they are even though they are miserable.

They have to find some way to deal with their unhappiness. And complaining to HR staff members isn’t sufficiently satisfying. So, why not tell the world how unhappy they are?

Can the employer discipline or discharge employees for public disparagement posted by way of a blog, public bulletin board or tweet? Isn’t the employee engaging in disloyal conduct inconsistent with his or her fiduciary duty to the employer or the employer’s code of conduct?

Not so fast. It is possible that the disparagement may be protected activity.

Consider the following examples. We will call the employer EBU Inc.—Everyone Bashes Us.

  • “I hate EBU. I work with a bunch of morons.”
  • “EBU favors women over men. Men need to stand up to the bias.”
  • “EBU’s products suck. I would never buy them.”
  • “EBU’s supervisors take advantage of employees; we are treated like dirt.”

In determining whether the employer can take action against the employee for the disparaging comments, the employer must consider the three sources of potential legal protection discussed earlier. The employer must consider whether the employee’s speech may be protected under a law that specifically protects certain kinds of speech from retaliation.

The first and third postings are probably not protected. They are negative without raising any legal issue.

In contrast, the second and fourth postings probably are protected. Title VII of the Civil Rights Act of 1964 probably protects the employee in the second posting. The employee in the fourth posting may be protected by the National Labor Relations Act (NLRA).

Indeed, in October 2010 the National Labor Relations Board issued a complaint against an employer that fired an employee for making negative comments about his supervisor on Facebook. The board alleged that the employee’s posting constituted protected concerted activity under the NLRA. Although the employee was a union member, nonunion employees also cannot be discriminated against under the act for engaging in protected concerted activity. The board alleged that the employer’s broad prohibition on posting disparaging remarks about the company or its supervisors violates the law by interfering with the right of employees to engage in protected concerted activity. The case has since been settled, but the issue has not gone away.

Employers need to analyze each factual situation carefully to determine whether the posting may be protected. Keep in mind the practical reality that terminating the employee will not result in the employee’s silence. To the contrary, the employee will now have time to tell people literally all over the world why they should loathe you, too.

Relationships

For purposes of the following questions, think of a subordinate whom you supervise:

  • Would you go into his or her home?
  • Would you go into his or her bedroom?
  • Would you open the drawers of his or her bedside dresser?

If you answered no to the second and third questions, then think twice about friending a subordinate through social media.

Employees often have more personal information on their “private” social networking sites than you would see in their bedrooms or in most dresser drawers. The potential problems are limitless.

You discover that your subordinate is using illegal drugs because she posts about the “great pot I bought.” Does an employee have an expectation of confidentiality? Do you have an obligation to your employer to address the comment, particularly if the employee performs a safety-sensitive function?

Or, the employee talks about feeling suicidal. Do you have a duty to try to get the employee help? Or to engage in the interactive accommodation dialogue?

There are no clear answers. What is clear: These situations create ethical, if not legal, dilemmas.

Of course, exposure to personal information is not limited to social media. Personal information is shared between supervisors and subordinates when they develop a personal component to their professional relationships. However, in conversation a supervisor has some ability to control where the conversation goes. In contrast, once a supervisor enters an employee’s private social media page, he or she has no idea what he or she will discover.

For this reason, employers might wish to discourage supervisors from friending subordinates on personal social networking sites. The employer could even prohibit it. The risks are lower with professional social networking because the sites are less likely to contain personal information.

Of course, it’s not only an issue involving supervisor-subordinate relationships. The advice above would apply to other relationships when there could be institutional authority, even though there is no direct supervisory authority, such as relationships among HR professionals and other employees.

HR professionals often play a role in deciding who is promoted or fired. They hear complaints by those who believe they have been treated unlawfully or unfairly. In this context, they need to be objective and perceived as objective.

For this reason, HR professionals should think twice about friending employees in their organizations. After all, today’s friend may be tomorrow’s foe.

The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.

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