Should Social Media Determine Your Employment Status?

You are an employer. You have are interviewing a potential employee. You find information on a social media site that the employee does drugs, posts about parties every night, posts pictures that are not conducive to the image your company wants to have, or hates some people of a race not of that employee’s race. 

You are an employer. You find out on a social media site that a long time and loyal employee hates his or her job, has been skipping out of work early, is spending time on your clock on social media sites, or is saying negative things about your company or other employees.

You are an employer. You are concerned about your employee doing any or all of the above and you want to get access to the potential or actual employee’s social media sites to do your due diligence?

What are your rights? What are your boundaries?

I find myself a little outside of my element this week insofar as I do not practice labor/employment law or unemployment compensation law. I guess this is more of an opinion article that I am used to writing. Hopefully employers, human resource experts, and other attorneys will provide some insight.

There are some reports by national news media outlets that employers are requiring potential employees to disclose their social media account names and passwords as part of the employment screening process. At first glance, I thought such information was an incredible invasion of privacy. At second glance, perhaps this is the way to really know an employee. What happens if an employee is posting negative information about his or her employer online? Should that matter?

It is not called, “private media.” It is “social media” on sites that try to disburse information to as many “friends” or colleagues as possible. Some people I know have more Facebook friends than the population of their town (yes, I know people that live in small towns). How far can employers use social media information to determine a prospective employee’s or a current employee’s employment status?

I know a few basics about Florida employment law. First, this is a right to work state where employees can quit for any reason and employers can let employees go for almost any reason. Employers cannot refuse to hire or cannot let an employee go for discriminatory purposes such as “race, color, religion, sex, national origin, age, handicap, or marital status.” 

There are also programs in Florida to implement drug-free workplaces that require specific policies and programs for implementation and counseling if an employee has an issue. 

But the question remains how far can an employer base its initial employment decision or its continued employment status on the employee’s personal life and decisions? 

The only metaphor I can think of is whether, I, as an employer, can show up to my employee’s house on random nights to see if he or she is sober or to listen in whether my employee is talking to his or her neighbor about whether the employee hates his or her job. When I think of it in those terms, I would probably get arrested for stalking or harassment if I did it every night or every hour.    

With the power of social media, an employer can do just that. 

I find myself with two competing principles that I cannot reconcile. 

On the one hand, an employee should be able to live their private life as they see fit.  If I research their social media personality before hiring them, and I do not like it, then I should not hire them. If they spend their personal time complaining about their job or engaging in risky behavior, but it doesn’t affect their daily production, I should stay out of it.

On the other, if an employee is going to blast their drug problem or dislike to every friend they know with an Internet bullhorn, that affects my business reputation and now the employee becomes a liability even if their daily work is within the realm of productive. Let me be clear, every workplace should be drug-free, but a very small percentage actually implement the drug-free workplace program.

Personally, since it is a right to work state we are in, I can let someone go for posting a social life on social media so long as it is not discriminatory. Depending on the severity, I may have some unemployment repercussions. Morally, I simply do not know the answer.   

Typically I end with a sentence to sum up the short answer to the question my article posed. This time, I would appreciate your thoughts on what you know, believe, or implement in your profession. While this has been written from an employer’s perspective, it would serve an employee’s interest well to keep their social media content clean, controlled, and free of information that affects the employer in any way.