The Internet is inescapable. Employees use it at home, at work and they carry it around with them on their laptops, smartphones and other devices. They blog, twitter, link, chat and post videos and photographs, often while at work.
Unfortunately, much of this communication is public and, once released on the web, irretrievable. In their communications, employees may disclose protected information about themselves, disparage their employer or supervisor, harass a co-worker, disclose confidential business information, report allegations of misconduct or discrimination on the job, access inappropriate web sites on company equipment or simply waste time at work. Employees’ use of the Internet and, in particular, social media sites such as Facebook, poses risks which employers need to acknowledge, understand and manage.
If you Google job applicants or check their Facebook page, you are not alone. In a recent CareerBuilder.com survey, 45 percent of participating employers said they use the internet to research job candidates. There are obvious benefits to using these tools — you can uncover a trove of useful information about the applicant’s educational background, work history and career interests.
However, Internet searches can be unreliable and social networking sites frequently contain information which employers cannot rely upon in the hiring process such as an applicant’s race, sexual orientation, religion or medical condition. Your decision not to hire an applicant after viewing such information on the applicant’s Facebook page, for example, can expose your company to liability because once you have knowledge of an applicant’s protected information, it is difficult to prove you did not rely upon it.
There are ways, however, to minimize these risks.
What information are you looking for; are there specific search terms or sites you intend to utilize; who will conduct the searches and what is the process in the event you discover disqualifying information? These procedures should be documented and applied in a uniform manner.
You should notify applicants that you intend to use internet searches as part of the hire process. You should also utilize electronic media only after the initial screening and in-person interview of the applicant. To ensure that you are relying upon accurate information, consider asking the applicant about disqualifying information before making a final decision to provide an opportunity to correct or clarify the information.
You should also designate a non-decision maker, such as a human resources representative, to conduct the search. This individual should be trained to conduct an appropriate search and should screen out information that cannot lawfully be considered in the decision-making process. This will ensure that the hiring manager receives only “scrubbed” information based on job-related criteria. You should avoid relying on legal, off-duty conduct such as recreational or political activities as the basis for a decision not to hire. Such conduct is often protected by laws.
And you should identify a legitimate, non-discriminatory reason with supporting documentation for the no-hire decision.
There are many circumstances which may prompt an employer to discipline an employee for misuse of social media. Whether its disclosure of confidential information, harassment of a co-worker or simply excessive Internet surfing, employers should follow standard, well-established human resources practices: conduct a prompt and thorough investigation, document witness interviews, interview the accused employee, identify the policy violation and follow progressive discipline. You should also consider whether the employee engaged in legal, off-duty conduct and whether such conduct is protected by non-discrimination statutes, the National Labor Relations Act (which may apply even in a non-unionized workplace), whistleblower statutes or other fair employment laws.
Employers should be proactive in addressing issues related to electronic media and the workplace. Implement policies communicating the employer’s expectations, outlining permissible and prohibited conduct and establishing guidelines for employee use of electronic media both at work and home. What may be appropriate use in one workplace, may not be in another.
Such policies should be prepared with the assistance of counsel and should be distributed to all employees.
At a minimum, an electronic media policy should prohibit employees from disclosing confidential business information or making discriminatory or harassing statements of any kind. The policy should prohibit employees from using the company computer to defame the company, its employees, managers, customers or vendors. It should describe acceptable use of electronic media at work (for example, business use only), clearly express that employees have no right to privacy when using the company’s computer system, reserve the right to inspect company equipment and monitor employees’ internet use and make clear the company’s right to take disciplinary action for violations of the policy.
While electronic media and social networking sites are new, the risks they pose for employers can be managed with forethought and creativity. Employers should understand these issues and take action to address them.
James Shea and Margaret (Peggy) Strange are partners in the Jackson Lewis firm in Hartford. Reach them at SheaJ@jacksonlewis.com and StrangeM@jacksonlewis.com.
