‘Friending’ an Employee or Job Applicant on Facebook May Create a ‘Frenemy’

September 8, 2011

The only risk associated with Facebook and other social media sites used to be that someone would deny your friend request or post a picture of you in college smoking something that requires a doctor’s note in some states. Employers are increasingly exposed to liability for screening and monitoring employees’ online activity. If you’re one of those employers, you should adopt a clear social media policy. Doing so will protect you from liability while allowing you to continue hiring quality applicants and monitoring the company’s perception online. 

The Pervasiveness of Social Media 
These days, people post their every thought and comment online. Between Facebook, Twitter, LinkedIn, and newcomers like Foursquare, a person is able to post what he ate for lunch, where he went to college, and even where he picks up his morning coffee. This frequent posting, however, has blurred the lines between personal and professional life, which is extremely relevant when it comes to complying with employment law.

Social media has become the new office water cooler, offering a forum for coworkers and employees to talk shop. It also leaves a record for everyone to see. Employers are increasingly monitoring online discussions to screen job applicants and protect the company’s overall perception. Caution is in order, however, because employers that screen or monitor their employees’ social media sites can expose themselves to liability.

Should You Friend a Job Applicant on Facebook? 
Screening job applicants online has become increasingly popular and easy to do. A recent report reveals that almost half of companies surveyed use social media sites to scope out potential employees before making a hiring decision. And job applicants increasingly are using social media sites to distinguish themselves from competitive applicant pools. Why? Social media sites can provide a wealth of information about an applicant that’s not typically included in a resumé.

But refusing to hire a job applicant because of information discovered from online screening may be against the law. Title VII prohibits you from refusing to hire an applicant because of his race, color, religion, sex, or national origin. The Wisconsin Fair Employment Act goes even further, prohibiting you from refusing to hire an applicant because of his ancestry, arrest or conviction record, marital status, pregnancy, sexual orientation, or use or nonuse of lawful products outside of work, among other things. Additional statutes prohibit you from refusing to hire applicants because of age, disability, and military service.

So what’s the problem with using social media to screen applicants? Many times, the information an individual posts includes protected characteristics. It’s not hard to imagine a Facebook profile page in which an applicant indicates he is gay or a Twitter announcement by a job candidate that she is pregnant. You could decide not to hire a job applicant after seeing that he “likes” a particular alcoholic beverage’s website. When justifying why a particular applicant wasn’t hired, it can be hard to segregate illegal reasons from legitimate ones. As one commenter put it, “you can’t unring the bell.”

Your decision not to hire a particular applicant based on information you found online can expose you to liability. Although refusal-to-hire claims are difficult to prove, online searches leave a trail and often can be used as evidence in civil litigation.

In one major refusal-to-hire case, a leading candidate for a teaching position at the University of Kentucky was knocked out of the running after someone at the school performed an Internet search and turned up evidence of his extreme evangelical beliefs. The university informed the applicant of the Internet search and of its concern with his views. The school hired someone else, and the dejected candidate sued. The case settled for $125,000. Refusal-to-hire claims may become more prevalent as more companies decide to screen applicants online.Gaskell v. University of Kentucky.

Should You Monitor Employees’ Facebook Wall? 
You may also expose yourself to liability when reprimanding or terminating employees because of their social media posts. Employers are beginning to implement social media policies that prohibit employees from posting information that is detrimental to the company. And most employers would agree that posting disparaging remarks about the company or coworkers could be grounds for discipline or even termination. But recent legal challenges demonstrate that a broad social media policy is not a cure-all for employees’ online misconduct.

In what was seen by many as a groundbreaking case, the National Labor Relations Board (NLRB) filed a complaint against an employer that fired an employee after she criticized her supervisor on her Facebook page for not allowing her to have a union representative present to help prepare an investigative report. The employee’s post also referred to her supervisor as a psychiatric patient and “scumbag.”

Nonetheless, the Facebook post elicited supportive comments from her coworkers. The employer found out about the comments and fired the employee under its social media policy, which prohibited employees from making disparaging remarks about the employer or coworkers.

The NLRB decided the Facebook discussion was protected activity under the National Labor Relations Act. The employees were discussing working conditions, union activities, and what they perceived to be unfair labor conditions. The derogative comments about the supervisor were intertwined with discussion of the unfair labor conditions. Thus, the NLRB found that the employer had illegally fired the employee under an overly broad social media policy. The case settled when the employer agreed to revise its social media policies.

The NLRB is actively pursuing cases in which employees were terminated for social media posts. In April, it approved the settlement of a nonunion employee’s charge that she was unlawfully terminated for posting comments on her Facebook page about her employer’s possible state labor code violations.

In May, the NLRB filed a complaint against a car dealership that terminated an employee for making disparaging remarks on Facebook about the food at a client event. More recently, the Board filed a complaint against a nonprofit organization that terminated five employees who made Facebook remarks that the employer claimed constituted harassment. The NLRB has announced that it has similar cases pending in all regions, indicating that employer social media policies and charges will be a continued focus.

Before You Send that Friend Request to an Employee…
You should take steps to protect yourself from liability stemming from employees’ social media use. Every employer should implement a social media policy and take care when disciplining employees under that policy. When drafting your own social media policy, keep these pointers in mind:

  • Draft a clear social media policy, and educate your employees on your expectations and consequences for violating the policy. Make sure they understand that while they may discuss working conditions, they may not post comments or images that may be detrimental to the employer or to coworker relationships.
  • If you intend to conduct an Internet search of a job applicant, tell him so in the interview. Telling an applicant that you plan to “google” his name gives him notice as well as an opportunity to clean up his online presence.
  • When screening job applicants online, limit your searches to aspects that are legally defensible — e.g., bona fide occupational qualifications, job-specific education, relevant skills, and experience.
  • Ensure your social media policy isn’t susceptible to an attack that claims it prevents employees from openly discussing wages, working conditions, and unionization.
  • Consider hiring an internal screener or third party to monitor and document applicants’ and employees’ social media posts. A designated employee or third party can forward relevant (and legal) information to individuals possessing the authority to hire and discipline employees. That will prevent potential refusal-to-hire charges and help head off discipline problems before they escalate.

Bottom Line 
The legal challenges to social media screening and discipline are similar to traditional employment law fights, but they occur in a forum that’s hard to control. Social media is here to stay. This area of law is developing rapidly, and employers must stay abreast of new developments. A clear social media policy can help protect you from liability while giving you the flexibility to screen job applicants and monitor the company’s perception online.

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