Friends may not be the only ones who see that clever Facebook post you just put up.
In fact, if a person’s profile is not set to private, potential employers could be watching as well. Many legal issues abound because social media allows an employer to see information that was once private. Yet, it’s not just about what one posts.
Brian Moore, a partner with the Charleston Dinsmore & Shohl law firm, said using social media to check a candidate’s background is gaining popularity.
“The important thing is it’s not a free-for-all, and there are legal implications,” he said. “You possibly could have discrimination claims or invasion of privacy claims.”
Jilted candidates could argue they were the target of discrimination because of race, as shown by a profile picture, or religious/political views.
“People used to have photos submitted with their resumes but that stopped for that reason,” Moore said. “Now you have social media, where you can’t un-see the information when you look at it on the Internet.”
Rick Wallace, a labor and employment lawyer at Spilman Thomas and Battle says employers who routinely use social media to screen candidates are putting themselves in a dangerous situation.
“This is because you have a picture, you know the race of the employee, their birthdays, religious information, political information,” Wallace said. “You’re getting all kinds of protected characteristics that you wouldn’t on a job application.”
Of course, this danger decreases the further along in the interview process, Wallace said. After a candidate has come in for a first interview, social media could be a good way to get “uncensored profile information.”
However, if a person’s profile is set to private and an employer finds a way to bypass it in any way, this could raise claims of an invasion of privacy.
“It’s common sense,” Moore said. “If someone has a password-protected profile or it’s set to private, employers shouldn’t use fraudulent means to access it. If it’s set to public, it’s public information. I don’t think individuals have done enough to protect themselves for their privacy rights.”
How can one find out if potential employers are discriminating based on one’s social media information? One can never be sure, but if the issue was brought to court, it could come out in discovery.
“If they filed a lawsuit and discovered that they screen all applicants using social media, they could accuse you of eliminating people of a certain race or religion,” Moore said.
This is why employers should have policies and training on social media, Moore said. Healso recommended businesses have a non-decision maker with an HR background to pass on relevant information found on a public social media profile.
“Well, if I saw something like illegal drug use or someone disparaging the company name or anything not legally protected, that could classify as fair game,” Moore said.
Moore recommends decision-makers to compile a list of what they’re looking for in an employee and run it by an employment lawyer. Gaining perspective of an employment lawyer is a vital step, Moore said.
Yet even when a person gets a job, he or she has to worry about keeping it.
Wallace said the same rules apply for firing an employee based on social media posts.
“It’s common sense,” he said. “For example, if a guy said he had an emergency and posted on Facebook a picture of him in a Halloween costume partying that same day, then it would come down to that.”
Yet Wallace cautioned that there are many federal regulations in place to enforce free speech on Facebook. In particular, the National Labor Relations Board issued a report Aug. 18 summarizing recent social media cases along with what is constituted as protected speech.
People should think twice about posting negative comments about supervisors. However, the NLRB ruled in favor of an employee who did just that.
This was more than just a run-of-the-mill negative remark about a supervisor, however. According to the NLRB, the employee posted the remark after she asked for a union representative in the context of a customer complaint.
Although this was against the company’s Internet and blogging policy, the NLRB states that the employee’s speech was protected.
“Complaining or grousing, saying you hate a co-worker or something would not be protected but when it gets into the territory of talking about taking action to deal with pay issues or workplace safety issues — any type of activity that would be aimed in theory to changing the condition of work or forming a union is protected,” Wallace said.
The NLRB also ruled in favor of another employee who was fired for posting photos and critical commentary of an event sponsored by his employer.
“At issue in this case was the salesperson’s activity in taking photographs of hot dogs and other inexpensive food and beverages offered by the luxury car dealership in connection with a sales event,” the document explained. “The message conveyed by the employee was that the cheap food and beverages offered sent the wrong message to clients and thus, negatively affected sales and commissions.”
This form of speech also was protected, the document states.
According to the NLRB, speech is protected if it raises concerns about one’s working conditions on behalf of other employees, or indicating that some sort of action will be taken.
However, employees who post offensive tweets on Twitter or Facebook posts are not protected, the NLRB states.
Along with creating social media policies and procedures, the NLRB also recommends employers remind employees that company e-mail and computers are not private. It also recommends companies have employees sign an acceptable use policy and to define the disciplinary plan if that policy is violated.
“I always recommend calling a lawyer, though, before making a decision,” Moore said. “It may take five or 10 minutes, but this is a major decision.”
West Virginia is an at-will employment state, which means that employers do not necessarily have to give a reason why they are firing someone. This can make matters complicated.
Employers simply could say that the firing was due to work ethic, which is why Moore says it’s difficult to prove intent in a discrimination suit.
“It ultimately comes down to who the court or jury believes,” he said.
But a good rule of thumb is to imagine one’s self in front of a crowded auditorium before posting anything, Moore said.
“If I wouldn’t say it out loud for the world to hear, then I wouldn’t put it on my social media site,” he said. “It’s just common sense. Treat the social media world the same way you would the real world.”
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