EmployeeScreenIQ Blog

I think we can all agree that it might not be the smartest thing in the world to refer to or describe your boss as a derogatory term reserved for the male genitalia. One might expect that doing so would be grounds for some sort of corrective action at best. But hey, maybe you’ve just used this term to a small group of colleagues and the boss won’t find out anyway. Maybe so. Now, what happens when you refer to him or her as such on your Facebook page? Shouldn’t you expect to be disciplined or even fired?

No so fast says the National Labor Relations Board. Here’s the back story according to Time Magazine.

Dawnmarie Souza’s comments on her Facebook page didn’t win her any points with the boss, but the rest of us owe her a debt of gratitude. In a rare test of old law on a new medium, she helped us understand just how little the online world differs from the land of bricks and mortar.

Souza’s career as a paramedic at American Medical Response of Connecticut Inc. may not have been too bright even before she called her boss various genital parts in a November 2009 Facebook posting. She had been hauled on the carpet for several incidents of allegedly rude behavior and had further rankled the emergency-response company by asking to have a union representative present when she was to be questioned about one particular customer’s complaint that she had been rude, according to a National Labor Relations Board (NLRB) investigation of the case. The company denied the request, and that, in turn, set off her colorful Facebook flurry. American Medical fired her 23 days later.

The federal National Labor Relations Act prohibits employers from punishing employees, whether or not they are members of a union, for talking about wages or workplace conditions or forming a union. The idea is to ease communication among workers so they can decide whether a union is necessary.

American Medical, the NLRB argued in a complaint filed Oct. 27, 2010, had violated the act in three ways. First, by refusing Souza’s request for a representative of the union of which she and her co-workers were members. Second, by firing her for her posts. And third, by maintaining a “blogging and Internet-posting policy” that “prohibited employees” from, among other things, “making disparaging comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”

Well, if the NLRB doesn’t believe that making disparaging remarks about your employer can be construed as offensive then they won’t mind me saying that they are full of s#@!

Sorry, I’ll only go so far in protecting employees’ rights when it comes to background checks on social networking sites. If someone is dumb enough to make these comments in a public forum, they should suffer the consequences. And by the way, why would she want to continue working for this company if she felt this way in the first place? And since this publication is only available to those who read it, I’m sure the NLRB would have no problem hiring us to perform employment background checks on their behalf after these remarks.

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Sure, we’ve done our fair share of railing against the use of social networking sites such as Facebook as part of the background screening process.  Evidently, most employers aren’t listening.  In fact, a 2009 Microsoft survey found that as many as 75% of U.S. employers are using this tool to help them make hiring decisions.

We’re not changing our minds on this one and this story that was published in the Washington Post only bolsters our belief that people are unfairly eliminated for things that are beyond their control.  In this story a job candidate was denied a job after one of his friends posted pictures of him drinking and smoking cigarettes. Legal activities, right?  The job seeker made sure that his profile was kept private, but unfortunately, his friend did not.  Fair?  See below.

Miranda Shaw, a manager at a leading consulting firm, is hiring for a senior analyst position. She has narrowed the field to two candidates, Rick Parsons and Deborah Jones, and must make her recommendation to the company’s human resources department immediately. Both candidates graduated from the same highly ranked business school that Shaw attended. Both boast appropriate work backgrounds and shone in their interviews.

However, Parsons is first in line for the job because of his leadership skills, reputation for tireless energy and great communication skills. Before making her final decision, Shaw decides to Google both candidates.

. . .

On one Facebook page, Shaw found an album of pictures showing Parsons drinking, smoking cigarettes and – in his words – “smokin’ blunts” with college fraternity brothers. The page belonged to Parsons’s friend, who had not enabled his privacy settings.

When Shaw Googled the other finalist, Jones, she found only work-related sites that listed Jones as an effective project manager.

Parsons’s online photos caused Shaw to rethink her choice and to grapple with the slippery boundaries between public and private life.

THE RESOLUTION: Shaw concluded that Parsons would not fit in with the company’s professional work environment and her team. She could not waste time or money on hiring the wrong person. Yet she wondered whether she arrived at her decision fairly. After all, Parsons had not offered the information willingly, and he had set the appropriate privacy settings on his own Facebook page. Also, Shaw had not disclosed that she would conduct a background check online.

THE LESSON: Many people do not realize the extent to which their friends and associates could harm their online reputations. For example, friends who post and tag photos with their name and online identity on Facebook and elsewhere may have much more open privacy settings. Whatever is publicly accessible becomes public information, no matter who uploads it. It is more efficient for HR professionals to conduct online searches than to conduct reference checks, so this is a growing dilemma for companies.

Before posting information and photographs on Facebook, remember that in the virtual world, our houses are made of glass. Every piece of data is permanent and stored in a digital archive. More than half of employers cite provocative photographs as the biggest factor in the decision not to hire.

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I was privileged to lead a panel discussion this morning for the Human Resources Management Association of Chicago entitled “Social Networking Issues: The Risks and Rewards Related to Facebook, LinkedIn & Twitter”.  The panel consisted of David Ritter, chairman of Neal, Gerber, Eisenberg’s labor and employment practice group, Alison O’ Hara, assistant general counsel at Follett Corporation, Courtney Hunt, founder and principal of Renaissance Strategic Solutions (RSS) and Mike Dwyer, senior consultant for Aon’s Organizational Performance and Implementation Group.

The panel focused on educating human resource professionals on the spectrum of social media platforms, how to build both a corporate and personal brand and of course, the pros and cons interacting with social media.  We didn’t get very far until the panel was asked what it thought of using social networking sites for background checks and employment screening.   I responded with the same thought many of you have heard me offer over the past several years.  As attorney’s, I was particularly interested in hearing both Alison and David’s thoughts.  David conceded that while there are certainly risks, he can understand why employers might be tempted to look.  And Alison mentioned, that there hasn’t been any remarkable litigation to date, but that all it takes is one example of an employer using it as part of an employee check in a discriminatory way to provoke strong reaction from the courts.  Both he and Alison agreed that you need to be extremely careful if you decide to engage in this practice.  They also said that if you were to find objectionable information, it all came down to a judgement call as far as a hiring decision was concerned.

Just some food for thought as you consider whether this practice is right for your organization.

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So, we’ve chronicled the issue of employers using the internet and social networking site to conduct background checks ad nauseum.  I’m all for beating dead horse (figuratively, of course), but I surmise we’ve done enough to highlight our opposition to this practice.  If you haven’t already done so, check out our free white paper, “Recruiting and Social Networking Sites: What You DO Know Can Hurt You.”

Instead of once again voicing our concerns, I found a great article written by Gary A. Olson, provost and vice president for academic affairs at Idaho State University.  Among the opinions Mr. Olson offers is that information found online cannot always be trusted.  See his comments below.

Too bad it is often so difficult to separate fact from fiction on the Web. Just because it’s been published doesn’t make it true, even in a newspaper article. Exercising genuine due diligence on a candidate’s background means thoroughly investigating information that seems disturbing or suspicious rather than simply trusting the source and assuming its validity. A thorough vetting may require numerous phone calls to parties in the know, but serious follow-through is essential to preserve the integrity of the search.

Most executive-search consultants are experts at the vetting process because their companies’ reputations are at stake. They will contact several people who are not listed as references on the candidate’s application—present and former supervisors, and even officials at previous institutions where the candidate once worked. They will also commission professional background investigations, which include verifying the candidate’s earned academic degrees as well as conducting a complete credit history and a criminal-background check.

Thanks Mr. Olson.  We couldn’t have said it better ourselves.  Check out the full article here.

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Great interview on the controversial practice of using social networking sites to conduct employment background checks.  Check it out.

HR and Facebook: It’s Complicated

2/7/2010 Star Tribune

Memo to human resources: Be careful what you look for on Facebook; it could come back to haunt.

Minnesota companies may be walking toward thin ice as they follow a national trend of using social media networks to screen potential employees.

A recent national study found that employers were impressed by personality, creativity and communications skills found via the Internet. But employers also rejected job candidates for inappropriate photos, content relating to drinking or drugs and misrepresentation of skills.

Unwittingly, these businesses could be violating — or close to violating — anti-discrimination laws that have protected workers for decades.

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 The following story isn’t anything new to our readers.  We’ve stated time and time again that employers should not use social networking sites as a way to investigate job candidates because the information you find may not be truthful in nature.  How do you know that the Facebook profile filled with bad language and borderline inappropriate photos you are looking at is your candidate’s creation and not the invention of a former friend, spouse or co-worker with an ax to grind?  Denying someone a job based on information found on a social networking site could be asking for trouble. 

But what about offering someone a position with your company based on the favorable information found in their profile?  This section of the article peaked my interest:

“On the other hand, some candidates are doing a good job of presenting their professional side when posting online. Half of those who screened candidates via their social networking profiles said that they got a good feel for the person’s personality and fit within the organization. Other employers said that they found the profiles supported the candidates’ professional qualifications or that they discovered how creative the candidate was. Solid communication skills, evidence of well-roundedness, and other people’s good references (we assume this one came from LinkedIn) helped boost people’s credentials, too.”

With all of the press surrounding employers using sites like Facebook, MySpace, LinkedIn and Twitter to screen job applicants, it’s only a matter of time before applicants catch on and create fake profiles to make themselves look more qualified and professional than they really are (and maintain their real profiles under a pseudonym known only to the people they want to know).  And those references you see on LinkedIn – I could have a handful of glowing references on my profile by the end of the day just by sending a mass text to my old high school and college buddies.

Employers - Don’t believe the hype about how great social networking sites are to screen candidates.  Can you imagine having to explain to your boss: “Well, their facebook profile looked okay…” 

Click to read “Uncouth Facebook postings closing doors for job candidates”

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Just found this great interview with attorney Jacqueline Klosek from Goodwin Procter about the dangers of using social networking sites such as Facebook and MySpace for employment screening purposes.  Among the topics discussed is troubling screening policy adopted and later rescinded by the city of Bozeman, MT.

Create Job Applicant Screening Policies Upfront- by Lora Bentley, IT Business Edge

Bentley: I’ve read about the public outcry that resulted from the City of Bozeman, Mont.’s decision to ask job applicants for their social networking site user names and passwords. Obviously, there are enough problems associated with that practice that the city discontinued it. Can you explain?

Klosek: It’s just, in my mind, fraught with legal dangers. For example, what you post on your own Web site, the writings and photos and such, you’re really using someone else’s service. And for the most part, if you provide your password to the sites in which you participate, you could be violating their terms of use, which could leave you as the user subject to potential claims, including termination of your account or worse.

Then, as an employer, say you ask someone for their user name and password and then give it to another employee to do the screening, you don’t know exactly what they’re going to do with that information. With the user name and password, they’re basically impersonating the person whose account it is. They can send e-mails that purport to be on that person’s behalf, they can review e-mails that were sent from other people… It could be mundane personal communications, but there could also be trade secrets being exchanged, or a host of other things behind these protected e-mails. It’s just a minefield of dangers, in my view.

Bentley: What if you are using the Internet to screen prospective employees without their user names and passwords? Aren’t there still risks in doing that?

Klosek: A great majority of potential employers do screen applicants using at least publicly available portions of the Internet. In some respects, there can be meaningful information on some of those sites, but you’re right to suggest there are risks in doing so. The biggest risk is that you may find too much information — information that, as a prospective employer, it may be dangerous for you to have.

For example, laws that we have in the States would prohibit inquiring or basing employment decisions on factors such as age, family status (whether or not you were looking to have children) …. Most employers are well-versed in avoiding those topics in the employment process, but they may access that information online.

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We recently sat down with Kevin Grossman, President of HRMarketer to discuss the landscape of today’s human resource marketplace.  Kevin always has an insightful take on the direction of the HR field and what’s on the minds of human resources professionals.  We also asked him to discuss the insatiable appetite those in the space seem to have for social networking tools.

Check it out!

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Have you ever played hooky from school and then inadvertently ran into one of your teachers later that same day?  Talk about an uncomfortable situation.  Same goes for your job – if you call off sick with a migraine stating that staring at a computer screen all day at work will make it worse, don’t get caught using Facebook at home.  One woman did and found herself out of the job.

I have to say, I sympathize with this woman.  If she truly was using her phone to access Facebook, that is markedly different that a 17 inch flatscreen monitor.  But it’s still a difficult argument to make.

Woman Fired For Using Facebook While Off Sick

City News Toronto – April 27, 2009

Social networking sites like Facebook, MySpace and Twitter have changed the way many people communicate and have had an unexpected impact on the workplace. Some companies have instituted policies blocking the popular web destinations, because workers spend too much time chatting with friends and not enough on their jobs.

And many prospective employers now troll the sites to find out what possible hires are leaving out of their resumes and what their attitudes are really like, leading some to lose a shot at increasingly limited openings.

Which brings us to another cautionary tale about Facebook, and an employee who lost her job because of it – even though she wasn’t using it at work.

Last November, a woman in Zurich, Switzerland called her employer, an insurance company, and told them she was too ill to come into work that day. Part of her duties involved using a computer, but she claimed her cure involved lying in the dark and that she was unable to face the lighted screen.

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Will we be seeing you in Las Vegas at the SHRM Staffing Management Conference April 29-May 1, 2009?  employeescreenIQ will be exhibiting again this year and while our good looks might not draw you to the booth, we’re sure to have cool giveaways!  We might even have some helpful information and materials about background checks and employment screening.

We are also excited to announce that employeescreenIQ president and C.O.O., Jason B. Morris will be leading a educational session on the use of Social Networking Sites when conducting background checks on Wednesday April 29th at 7:00am.  (Don’t worry.  They’ll serve coffee.)

Please stop by and see us at booth #317 if you plan to be there.

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