In recent years, the prevalence of social media sites has increased significantly. According to the Pew Internet Project Research related to social networking, as of January 2014, 74 percent of online adults use social networking sites. That means almost 3 out of every 4 adults that regularly use the Internet have one or more active social media accounts, and that means most of your employees are actively posting information about their lives on social media—maybe even about their jobs.
With so many people using social media, it’s no wonder employers have become more curious about what both potential job candidates and current employees post. In many cases, an employer will check a candidate’s social media activity when deciding whether to hire him, a practice that has become more and more prevalent. A 2013 CareerBuilder survey found that 39 percent of employers look at candidates’ social media sites, while 43 percent said they saw something that made them cross out a candidate from the running for a position—like inappropriate photos or negative posts about their job or supervisor.
When checking a job applicant’s social media profiles, employers should be careful not to let any information that relates to age, gender, sexual preference, disability, or religion affect their hiring decision. Doing so could lead to accusations of discrimination. Yet some information gained from the applicant’s Internet presence can be very useful and constitute legitimate grounds not to consider the candidate—for instance, any mention of belonging to a racist group, participating in illegal drug activities, and so on.
Beyond researching potential job candidates, some employers want to monitor their current employees’ online activity. Perhaps a manager is wondering if an employee is bad-mouthing him on Facebook. Or maybe an employer is suspicious that an employee is sharing the company’s trade secrets on his blog, which could constitute a violation of nondisclosure agreements.
Most of what people post online is harmless and completely unrelated to their work. Yet there are in fact instances when employers feel that the need to monitor employees’ social media activity is warranted, and the trend is on the rise. A recent report by Gartner Inc. predicted that by 2015, 60 percent of corporations will have formal policies for monitoring employee activity on social media. The report also included suggestions on how companies can stay within legal and ethical bounds.
Even with a company policy in place, there can still be legal consequences stemming from firing or otherwise penalizing employees for something they posted on social media.
In 2012’s Ehling v. Monmouth-Ocean Hospital Service Corp, a New Jersey district court ruled that “private” Facebook wall posts count as communications that are protected by the Stored Communications Act, which prohibits the unauthorized access of an individuals’ electronic communications and records that are intended to be private. The Act provides criminal penalties to anyone who intentionally and without authorization accesses a facility where electronic communications are stored. This is meant to protect individuals’ private electronic communications from being accessed through a third party, like an ISP (Internet service provider).
In this case, the company was not found guilty of penalizing Ehling for her online posts complaining about her work because of a technicality—it was another employee who was friends with Ehling on Facebook and could therefore see her private posts, and this employee printed them out and showed them to their employer.
The intersecting worlds of electronic communications, online presence, and the workplace can be difficult to navigate. Although employers have a legal right to monitor their employees’ activity on their work computers, they should try to stay on the safe side and only monitor an employee’s online presence when they have a solid reason to believe the employee is engaged in illegal conduct or conduct that is actively damaging to the company.
Do you think employers should monitor their employees’ or job applicants’ social media presence, or do you think they should stay away completely to avoid potential legal ramifications?
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