SOCIAL MEDIA TRANSPARENCY AND EMPLOYMENT

Introduction

One can apply the old saying, never judge a book by its cover to many applications in life, but today’s environment of instant social media 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.

Argument

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:

“Congress 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). LinkedIn’s privacy policy includes wording for users about their 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 significant case.

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 pages.

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.

Recommendations

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.

Conclusion

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.

References

Ballam, D. A. (2000). Employment-At-Will: The Impending Death of a Doctrine. American Business Law Journal, 37(4), 653-687. doi:10.1111/j.1744-1714.2000.tb00281.x

Background Checks. (2016, November). Retrieved January 28, 2018, from https://www.consumer.ftc.gov/articles/0157-background-checks

Boyd, D. M., & Ellison, N. B. (2007, December 17). Social Network Sites: Definition, History, and Scholarship. Retrieved January 21, 2018, from http://onlinelibrary.wiley.com/doi/10.1111/j.1083-6101.2007.00393.x/full

Chen, S. A. (2015, February 07). Calling James Smith! 10 Most Common First and Surname Combinations. Retrieved January 16, 2018, from https://blogs.ancestry.com/cm/calling-james-smith-10-most-common-first-and-surname-combinations/

Dame, J. (2014, January 10). Will employers still ask for Facebook passwords in 2014? Retrieved January 15, 2018, from https://www.usatoday.com/story/money/business/2014/01/10/facebook-passwords-employers/4327739/

Facebook Data Policy. (2016, September 29). Retrieved January 15, 2018, from https://www.facebook.com/full_data_use_policy

Green, M. Z. (2017, February 13). Protecting Unhappy Worker Outbursts from Discriminatory Treatment. Retrieved January 25, 2018, from https://worklaw.jotwell.com/protecting-unhappy-worker-outbursts-from-discriminatory-treatment/

Jobvite. (2014). Social Recruiting Survey. Retrieved January 20, 2018, from http://www.jobvite.com/wp-content/ uploads/ 2014/10/Jobvite_SocialRecruiting_Survey2014.pdf

Laidler, P. (2009). Basic Cases in U.S. Constitutional Law: Rights and Liberties. Kraków: Jagiellonian University Press.

Leonardi, P. M. (2017). The Social Media Revolution: Sharing and Learning in the Age of Leaky Knowledge. Information and Organization, 27(1), 47-59. doi:10.1016/j.infoandorg.2017.01.004

LinkedIn Privacy Policy. (2017, June 7). Retrieved January 15, 2018, from https://www.linkedin.com/legal/privacy-policy

Managing and Leveraging Workplace Use of Social Media. (2016, January 19). Retrieved January 26, 2018, from https://www.shrm.org/resourcesandtools/tools-and-samples/toolkits/pages/managingsocialmedia.aspx

National Conference of State Legislatures. (2018, January 2). Access to Social Media Usernames and Passwords. Retrieved January 16, 2018, from http://www.ncsl.org/research/telecommunications-and-information-technology/employer-access-to-social-media-passwords-2013.aspx

NLRB.gov. (n.d.). Retrieved January 21, 2018, from https://www.nlrb.gov/

Our Inspector General Whistleblower Protection Information. (n.d.). Retrieved January 28, 2018, from https://www.opm.gov/our-inspector-general/whistleblower-protection-information/

Pew Research Center. Social Media Fact Sheet. (2017, January 12). Retrieved January 20, 2018, from http://www.pewinternet.org/fact-sheet/social-media/

Rodriguez, T., & Lyon, J. (2013, January 10). Background Screening Reports and the FCRA: Just Saying You’re Not a Consumer Reporting Agency Isn’t Enough. Retrieved January 16, 2018, from https://www.ftc.gov/news-events/blogs/business-blog/2013/01/background-screening-reports-fcra-just-saying-youre-not

Shearer, E., & Gottfried, J. (2017, September 07). News Use Across Social Media Platforms 2017. Retrieved January 20, 2018, from http://www.journalism.org/2017/09/07/news-use-across-social-media-platforms-2017/

Statista.com. Number of Facebook Users Worldwide 2008-2017. (n.d.). Retrieved January 15, 2018, from https://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/

Stewart, D. R. (2017). Social Media and the Law: A Guidebook for Communication Students and Professionals. New York, NY: Routledge.

The Bill of Rights: A Transcription. (2017, June 26). Retrieved January 15, 2018, from https://www.archives.gov/founding-docs/bill-of-rights-transcript#toc-amendment-i