Employers, Social Media and Technology

Employers, Social Media and Technology

More and more employers are using social media to screen job applicants and monitor current employees. This issue of the Lundquist & Lange newsletter will address the changing legal landscape of employment law and new technology, including networking websites like Twitter, blogs and Facebook.

A recent study commissioned by the website careerbuilder.com found that a large percentage -- 45% -- of employers use social networking sites to research job applicants, and 11% plan on using social networking sites in the future. The study also showed that the use of social networking sites has had an impact on companies’ hiring decisions. 53% of employers have said that they won’t hire someone because of provocative information or photos found online, 44% won’t hire because of pictures of applicants with alcohol or drugs, and 35% said they won’t hire a candidate who has bad-mouthed a former employer. On the positive side, 18% of employers surveyed found information and content on social networking sites that caused them to hire a candidate.

What are potential problems with making hiring decisions based on what you find on-line? You could be violating the law. Our article will delve in depth about how employers could be running afoul of various state and federal laws when they use social networking sites to make hiring (or firing) decisions.

And finally, what about email or other technology that is now more easily available, like security cameras or monitoring equipment? Does an employee have a right to privacy for the emails that she writes at work and conversely, can an employer monitor employees’ phone calls or actions in a break room?

Employees and the Internet

More likely than not, your employees use the Internet -- Facebook, MySpace, Twitter, blogs and other social networking sites which are too numerous to name here. They are also likely to use them while at work.

Can an employee be disciplined or terminated for his/her blog or for postings on Facebook? The short answer is yes, if he is a public employee. In private employment, you can discipline and terminate an employee for his online writings, whether done on the employee’s free time, or while at work. The question is whether that is a good business practice.

In an office setting where employees use a computer and have Internet access, certain sites like Facebook or YouTube can be blocked completely. Some companies allow limited access for business purposes, while a few allow it for personal purposes as well. If your company does have a ban on social networking sites and if you discipline employees for using one, be sure to do so uniformly and notify your employees in writing about the policy.

Many employees blog and will blog about work. By providing guidelines, you set expectations. Tell employees that they can write about work but can’t divulge confidential information, use company intellectual property or disparage the company. Provide room to discipline an employees whose blog is against the company’s business interest but taking action for other reasons, such as disagreement with the content, runs the risk of violating the law,

Employers + Social Media = A Legal Conundrum

More and employers are using the Internet and social networking sites like Facebook, Twitter and blogs to screen job applicants or monitor employees. But do employers risk running afoul of the law when doing so? The answer is yes.

A business might chose to interview only applicants who have an online presence, whether through a Facebook or MySpace profile or a LinkedIn account. It might seem like an easy way to make an initial cut of applicants, especially in today’s job market where there are 6 applicants for every open position. However, the employer who chooses this approach risks discriminating on the basis of disparate impact. Unlike "regular" discrimination, where an employer treats someone differently because of a protected class like sex, race or religion, disparate impact is when an employer has a policy that doesn’t look discriminatory, like interviewing only those applicants with an online presence, that has an unintended discriminatory impact on a group of applicants. A recent study showed that just 46.4% of black Americans were online in 2008, behind the 56.5% of Hispanics and 70% of white and Asian Americans who are online. As you can see, this type of policy risks having an unintended discriminatory impact on minority applicants because they aren’t online as much.

Aside from disparate impact discrimination, an employer risks violating anti-discrimination laws by accessing personal information that can be found on social networking sites. If an employer learns that an applicant is disabled, a minority, or of a political party that the interview doesn’t agree with, will that information, even subconsciously, be used in the decision to interview or hire an individual? It shouldn’t be and it is best not to know any of this personal information about an applicant. Just as it isn’t appropriate in an interview to ask an applicant if he is married or what her religion is, it isn’t appropriate to learn this information through other means, even those that are easily available online.

Finally, it has been shown that 44% of employers won’t hire an applicant because of online content that shows the applicant using alcohol or drugs or even smoking. In Minnesota, this can be illegal. Minnesota law states that an employer cannot refuse to hire an applicant, or even discharge or discipline an employee, because of an individual’s "use and enjoyment" or lawful products such as alcohol, tobacco or food. This doesn’t include illegal substances. So even if you don’t like to be around smokers or are a teetotaler, this isn’t (usually) a reason not to hire someone.

The lesson? Judge, hire and discipline applicants and employees for their skills and abilities, not their personal life, their personal information or other protected classes. Employers, Social Media and Technology

More and more employers are using social media to screen job applicants and monitor current employees. This issue of the Lundquist & Lange newsletter will address the changing legal landscape of employment law and new technology, including networking websites like Twitter, blogs and Facebook.

A recent study commissioned by the website careerbuilder.com found that a large percentage -- 45% -- of employers use social networking sites to research job applicants, and 11% plan on using social networking sites in the future. The study also showed that the use of social networking sites has had an impact on companies’ hiring decisions. 53% of employers have said that they won’t hire someone because of provocative information or photos found online, 44% won’t hire because of pictures of applicants with alcohol or drugs, and 35% said they won’t hire a candidate who has bad-mouthed a former employer. On the positive side, 18% of employers surveyed found information and content on social networking sites that caused them to hire a candidate.

What are potential problems with making hiring decisions based on what you find on-line? You could be violating the law. Our article will delve in depth about how employers could be running afoul of various state and federal laws when they use social networking sites to make hiring (or firing) decisions.

And finally, what about email or other technology that is now more easily available, like security cameras or monitoring equipment? Does an employee have a right to privacy for the emails that she writes at work and conversely, can an employer monitor employees’ phone calls or actions in a break room?

Employees and the Internet

More likely than not, your employees use the Internet -- Facebook, MySpace, Twitter, blogs and other social networking sites which are too numerous to name here. They are also likely to use them while at work.

Can an employee be disciplined or terminated for his/her blog or for postings on Facebook? The short answer is yes, if he is a public employee. In private employment, you can discipline and terminate an employee for his online writings, whether done on the employee’s free time, or while at work. The question is whether that is a good business practice.

In an office setting where employees use a computer and have Internet access, certain sites like Facebook or YouTube can be blocked completely. Some companies allow limited access for business purposes, while a few allow it for personal purposes as well. If your company does have a ban on social networking sites and if you discipline employees for using one, be sure to do so uniformly and notify your employees in writing about the policy.

Many employees blog and will blog about work. By providing guidelines, you set expectations. Tell employees that they can write about work but can’t divulge confidential information, use company intellectual property or disparage the company. Provide room to discipline an employees whose blog is against the company’s business interest but taking action for other reasons, such as disagreement with the content, runs the risk of violating the law,

Employers + Social Media = A Legal Conundrum

More and employers are using the Internet and social networking sites like Facebook, Twitter and blogs to screen job applicants or monitor employees. But do employers risk running afoul of the law when doing so? The answer is yes.

A business might chose to interview only applicants who have an online presence, whether through a Facebook or MySpace profile or a LinkedIn account. It might seem like an easy way to make an initial cut of applicants, especially in today’s job market where there are 6 applicants for every open position. However, the employer who chooses this approach risks discriminating on the basis of disparate impact. Unlike "regular" discrimination, where an employer treats someone differently because of a protected class like sex, race or religion, disparate impact is when an employer has a policy that doesn’t look discriminatory, like interviewing only those applicants with an online presence, that has an unintended discriminatory impact on a group of applicants. A recent study showed that just 46.4% of black Americans were online in 2008, behind the 56.5% of Hispanics and 70% of white and Asian Americans who are online. As you can see, this type of policy risks having an unintended discriminatory impact on minority applicants because they aren’t online as much.

Aside from disparate impact discrimination, an employer risks violating anti-discrimination laws by accessing personal information that can be found on social networking sites. If an employer learns that an applicant is disabled, a minority, or of a political party that the interview doesn’t agree with, will that information, even subconsciously, be used in the decision to interview or hire an individual? It shouldn’t be and it is best not to know any of this personal information about an applicant. Just as it isn’t appropriate in an interview to ask an applicant if he is married or what her religion is, it isn’t appropriate to learn this information through other means, even those that are easily available online.

Finally, it has been shown that 44% of employers won’t hire an applicant because of online content that shows the applicant using alcohol or drugs or even smoking. In Minnesota, this can be illegal. Minnesota law states that an employer cannot refuse to hire an applicant, or even discharge or discipline an employee, because of an individual’s "use and enjoyment" or lawful products such as alcohol, tobacco or food. This doesn’t include illegal substances. So even if you don’t like to be around smokers or are a teetotaler, this isn’t (usually) a reason not to hire someone.

The lesson? Judge, hire and discipline applicants and employees for their skills and abilities, not their personal life, their personal information or other protected classes.