“My editor is the biggest moron this side of the Mississippi!” “My coworker sleeps through the afternoon after tying one on at lunch almost every Friday.” “My paper is about to get sold to one of those big chain newspapers.” “Hubby and I are so excited that we found out today we’re going to have a baby!”
What would you do if you read any of those comments posted on the Facebook page of one of your employees? Or a candidate you were interviewing for a job. HR waters are getting increasingly tricky to navigate, and you need to know a few basics to avoid sinking the ship along the way.
Pre-Hiring. Making the right hiring decisions is a big part of what accounts for the success of any enterprise. The speaker in a seminar I attended last week said that 44% of employees lie in one way or another in their employment application. You need to narrow your search to the remaining 56%, and one way to do that could be searching online to see what a candidate is doing and saying outside the job application. We all know that you cannot discriminate based on things like color, nationality, gender or religion in in your hiring. You know that you cannot even ask certain questions. But what if you are interviewing a candidate for a job, poking around online, and you find out certain sensitive information by reading the candidate’s Tweets or Facebook page.
Though learning what you can about someone through social media seems harmless enough, it actually can get you in hot water if you learn “protected information” about someone and then don’t hire that candidate. If the candidate is going to have a baby in 8 months, you won’t be able to tell it just by looking. And legally you cannot take that into account in making your decision. On the other hand, if you are interviewing for an accountant, you do want to know and can take into account if the person has a criminal background that includes embezzlement. One way to deal with this difficulty is to delegate your online searching to a well-trained person who then will not participate in the decision-making about hiring. Have someone look for information about the applicant, direct how that search will be done, and have that person then tell you only the non-protected, legal information that you need to know. You can have applicants sign a release and authorization that they understand they do not have an expectation of privacy in anything they post publicly on the internet. This does not mean you ask for their passwords, but just that they understand you may be reading their Facebook posts and blogs and tweets.
Once you have designated someone to do the searching, have that person focus on job-related issues, not family information or political affiliations or religious ties. Also have the person retain all the information that was found and to clearly indicate what information was shared with those who make the hiring decisions. Be sure that your “searcher” is being consistent in how he or she does the search, too. If there is a criminal background check for some, do that for all.
Employees. I’ve written before about the fact that the National Labor Relations Board is being increasingly vigilant in sanctioning policies or actions that could even conceivably have a chilling effect on employees speech rights and their ability to organize. You certainly have the ability to prohibit employees from disclosing confidential information, and you have the ability to prohibit employees from using social media as a way of harassing their co-workers, but you don’t have the ability to stop them from carping about their boss, their low wages or what they perceive as their crummy job. Therefore, the best thing you can do to protect yourself and your company is to have clear social media policies describing your expectations and giving examples.
Develop a policy regarding supervisors friending subordinates. While it seems like the nice and friendly thing to do, but if an editor friends one reporter and not another, it can lead to trouble or allegations of favoritism. There also is the risk that a supervisor tacitly endorses the Facebook activity of the subordinate if she sees something inappropriate and does nothing. The supervisor who has a subordinate as a friend also must consider his posts to be sure they cannot be misinterpreted.
The former employee. Many institutions now deliver name, rank and serial number when someone calls for a reference. You may confirm dates of hire and salary, if that. This policy can be undermined, however, if someone from your organization is handing out endorsements and accolades on LinkedIn. Develop a policy that no one can give a LinkedIn or other reference – good or bad – without running it by HR. Standard employment policies also should include a recitation of who owns social media accounts upon an employee’s departure, and if the company retains those accounts, the employee must turn over password and other login information upon leaving the paper.
There’s a lot of information and benefit to be had from the information superhighway, but we’re starting to see some road kill, too. Be sure that your company and your employees are smart in the ways they navigate to assure you maximize the benefit and minimize the risk. As always, if you have questions about any of these issues, don’t hesitate to call the NCPA Legal Hotline: 919-833-3833.