Over the course of the last year, especially during the most recent election cycle and other crises that have occurred, news of individuals caught in one scandal after another involving their use of the Internet and various social media platforms has been a daily occurrence. In certain circumstances, these “scandals” have evolved into what is referred to as “cancel culture” and led to the individuals losing their employment and business loss of income. In more extreme cases, it has led to law enforcement investigations and lawsuits.
A question I often hear from my corporate clients is to outline legal guidelines in utilizing the Internet and social media platforms to investigate either the current or prospective employees of their company. These clients want to utilize these investigations to address a problem before it becomes a social media firestorm that would negatively impact their business. Business owners also want to prevent a problem in the first place by avoiding hiring a potentially troublesome employee.
In my presentations to corporate clients on the subject, I always start the discussion with the statement “the Internet is forever.” Any statement, posting, tweet, video, or email, even if deleted shortly after its occurrence, remains in existence. There are search companies and social media cache programs designed for the very purpose of either saving a post within minutes of it occurring or for the ability retrieve deleted items. Individuals who have seen controversial posts often will take a screenshot of the post as proof of its existence. As a result, a business owner must assume that any posting, statement, or other use of the Internet will always exist and can therefore be potentially accessed by others. As such, corporate clients must act and react accordingly.
The next subject I discuss is even though the Internet and social media platforms are very public outlet with the “goal” of free flow of information, an employer still needs to make certain it complies with federal and state rules and regulations concerning discrimination when it utilizes social media in its investigations. One example is Title VII of the Civil Rights Act and protected classifications outlined therein (e.g. race, gender, age, sexual orientation, religion, etc…). Another example is disability discrimination as outlined by the Americans With Disabilities Act. Both of these federal statutes, and similar state statutes that address these areas, would prohibit an employer perusing information that he or she would not be entitled to if requesting the information from the employee.
Although employers should avoid use of the Internet and social media to discover legally-protected information as outlined above, an employer is not prohibited from conducting research about prospective employees in other subjects.
Researching through social media if an employee appears to be reliable, honest, speaks negatively about others, his/her emotional maturity level, criminal behavior, and similar issues are acceptable areas to research. For example, prospective employees who post statements online such as “I lied to my supervisor about a project deadline, but he is too dumb to notice,” “I hate working with these clients,” “I came to work still intoxicated from the night before,” or “I want to punch my co-worker in the face” are all legitimate social media red flags that the employer can use in the determination of whether or not to hire someone.
When a prospective employee social media search is conducted, it should be under written guidelines established by the company, which will outline the parameters. It should either be conducted by one individual (such as the HR Director) or by a small group of individuals who are directly responsible for the hiring of the position in the company. It should not be utilized as an employee free-for-all to see who can find the most information the quickest. In addition, an employer must avoid obtaining this information utilizing deception. For example, creating a fictitious character and then having the prospective employee “friend” the character in order to gain access to information is problematic and should be avoided.
Often employers are caught in the crossfire when an Internet “scandal” occurs involving an employee. The best defense in this situation is a good offense.
First, employee handbooks and employment agreements should include sections and provisions concerning an employee’s conduct. Emphasizing that as an employee they are representing the company and that certain negative actions and behaviors will have a detrimental effect. As a result, negative actions and behaviors both inside and outside the workplace may directly impact their employment and be a cause for termination. Putting an employee on notice from the start is both an effective deterrent and affords protection for the employer if something does occur.
Second, if a negative event has occurred, the company should have written procedures in place for a quick investigation and determination of what is to happen next. In addition, these procedures should designate certain company personnel to quickly investigate and address the issues as quickly as possible. The Internet works at the speed of light with a ripple effect that can turn into a tsunami if a company does not address a situation quickly and effectively.
However, I also encourage companies to be quick to respond, but slower in judgement. In other words, you want to address the matter quickly, but wait until you outline potential changes to the company, employment of individuals, or policies. Companies need to remember that what is on the Internet may certainly not be true and those who are disseminating the information may not have the company’s best interest at heart. A company should not take quick legal or other actions (such as terminating the employee) without investigation and substantiation that the social media “scandal” is accurate.
In addition to the circumstances discussed above, sometimes employers learn of the actions of employees through social media that may not involve a “scandal.” Nevertheless, these actions impact the company and can create personnel issues. This below example, that I have heard of more than once, outlines this situation:
An employee contacts his/her employer (usually outside of business hours) notifying that a family member is facing a medical or other crisis. As a result, he/she must without notice take several days off to travel across the country to help in the crisis. The employer accommodates the request and makes arrangements for other employees to complete the work previously assigned to the absent employee. Shortly thereafter, the employer discovers (usually by information from other employees) through social media sites that that employee is not taking care of a family crisis. Instead, he/she lied about the crisis and is in Costa Rica or another exotic location with their significant other on vacation.
Under this example, the company is within its rights to trigger its investigation process and to determine whether termination is necessary. The primary consideration is to follow the policies and procedures that are in place.
In the fast-paced social media climate that is now in existence, a business needs to be aware of the social media impact on both itself and its employees. A business with established principles and guidelines in place for these occurrences (and to prevent troublesome employees from being hired in the first place) will both allow for these matters to be properly investigated and avoid running afoul of statutory mandates.