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Tuesday, January 19, 2016

How Are Employees, as Well as Job Applicants, at Risk When Using Social Media?

Posting your profile on social media these days can be risky for job candidates, as well as for employees. Social media such as Facebook and Twitter is becoming a common reason for disqualifying otherwise acceptable job candidates.

According to one news source, hiring managers are regularly using social networking sites when vetting job applicants because of their convenience and concerns that that they may not be hiring the right people. NBC reported as early as 2007 that according to a  survey by Ponemon Institute, a privacy think tank, "35 percent of hiring managers use Google to do online background checks on job candidates, and 23 percent look people up on social networking sites. About one-third of those Web searches lead to rejections, according to the survey."

A large amount of data on social media can provide information to employers who are screening job candidates, but many may find out more about their potential candidates than they wish to know. 

Too Much Information

While a great many job applicants have been disqualified by their employers because of their social media posts that contradict information provided on their job applications, or even images of themselves engaged in risky and/or irresponsible behavior such as bragging about getting drunk with their friends, writing about another’s or their own engaging in lascivious conduct, the posting of lewd photos, etc.,  many employers have found themselves in the uncomfortable position of finding out facts about job candidates they did not want to know. 

When browsing the social media or other parts of the internet, employers may inadvertently discover an applicant's age, religion, race, ethnicity, sex, gender orientation, sexual orientation or disability. Employers may even discover whether a particular job applicant is married or divorced, pregnant or suffering from a particular disease. Such information may put the applicant at risk if it results in employer engaging in resulting illegal discrimination, and it may also put the employer at risk of being accused of discriminating.

Employees are sometimes surprised to learn that the employer can search social media sites, such as an employee’s Facebook page, to see if the employee is publicly bad-mouthing the employer.

Once the employer has uncovered certain information about a person from a social media site that was not disclosed on an employment application, it may be impossible for the hiring person to erase it from his or her memory, and yet it may be illegal to allow such facts to influence the hiring decision. While there are certainly positive bits of information to be gleaned from social media, including writing skills, sense of humor, and comments of admiring former bosses and friends, the potential for negative information making it to the eyes of a potential employer continue to exist. In the same way, the risk of being accused of being influenced by public information to illegally discriminate, continues to plague employers.

An at-will employee may be fired at anytime for any reason as long as it is not for an illegal reason. The limits of what an employee can post on a social media site and whether it may be considered protected free speech, such as a collective complaint by employees about the employer’s regular business practice of violations of fair labor standard practices, or whether the employee’s bad-mouthing of a co-worker would be extreme enough to be considered bullying of that co-worker  thereby creating a hostile work environment ( illegal discriminatory acts against another co-worker)  and  grounds for termination, are continually evolving. Another example is when the parameters of an employee’s bad-mouthing an employer on a public social media site veers into breaching the common law duty-of-loyalty because it is driving away or has the potential to drive away the employer’s customers. 

If you feel you have been terminated from your job or denied a job because of employment discrimination, whether or not of result of facts that you posted on a social media website, it is essential for you to contact an experienced, competent employment discrimination attorney who will be aggressive about enforcing  your rights.

Every situation is fact specific, and if you are a person who believes you may be the victim of the employer's discrimination, or if you were terminated and believe that retaliation for reporting what you believe to be discrimination may have been a factor, please contact Hope A. Lang, Attorney at Law, today at for a free consultation.

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