The Internet Age and Employment

Question to Ask the Workplace Doctors about employers surveillance of employee’s on social media:

In the Internet age, and some employers watching the online activities of employees/applicants (when the employee is away from work on time the employee is not paid for), how will an employee/applicants know if they are the victim of discrimination? For example, what if an employer goes online and sees personal family pictures of an applicant and does not hire based on those photos alone? For example, an applicant has children and an employer only wants to hire applicants without children. How would an applicant know that they were being discriminated against for having children? What if an employer decides an applicant looks too old in photos and does not hire because of that? What if an employer decides they do not want to hire women and only has to view an online photo or other online information to get the information they need to discriminate? Should employers be allowed by law to view what employees or applicants do online, on time they are away from work and not being paid for, and on an employee owned/private (non-work) computer? Is it legal for a manager to say “I’m not hiring you because we are waiting for the younger crowd to get out of school for the summer and work here?”Should employees be allowed to write about the good and bad things of their workplace online without fear of retaliation, and is it a freedom of speech issue (as long as it is not done on employer computers or on the clock)? Should employers be allowed to view online activity of employees/applicants, when it is done away from work on non work computers on time that is not paid?

Signed, Internet Questions

Dear Internet Questions:

Your questions should be directed to a legal site. They are many and we address workplace communication-related questions, not legal ones. However, I forwarded them to a Human Relations Manager. His response follows: Facebook has opened the floodgates for discrimination lawsuits. But the problem can be solved by having your profile hidden by adjusting your account settings so that only friends and/or family can see what you’ve written. We should all THINK before what we post. So if you didn’t get a job because you wrote about your previous employer, you shouldn’t be surprised since what you write is public.

Ask yourself this, would you want your previous employer to write harmful things about you especially if it’s true? Remember, you have to prove what your employer said is not only false but there was malicious intent. The latter is very hard to prove. You would have to demonstrate significant harm.Also, employers that read a prospective employee’s profile have found that they can predict your future success. It’s been reported on the Internet that universities have been looking at this correlation and the results have led to predictability of an employee’s future success.Just remember this: If you post something on the Internet, it’s now public information. If you want to keep it private, then say it privately in a phone call or email and keep it off the Internet. Also, keep in mind the old adage – if you can’t say anything nice about someone or something – then don’t say it. Human Resources Manager

A note from Tina Rowe: I wanted to add to Mr. Kearny’s response, since I think he assumed you were having a problem right now, rather than asking generalized questions. I’ve summarized the key ones here.

1. “How can an employee be sure that an employer doesn’t discriminate based on information found on social sites and elsewhere?” The quick answer is that there is no way to know. But, there has never been a way to know for sure why one is hired or not hired.The truth is that employers can use any legal resource at their disposal to evaluate potential employees. Some candidates may be chosen because of things that are found on the Internet while others may be eliminated based on those things. In every generation, new resources are available for finding out about potential employees, volunteers, interns, participants, etc., (according to why the background investigation is being done) and those will be used. Unless employers announce their intentions to discriminate for or against candidates based on protected status issues, there is no way of knowing for sure if they have or have not, but that has always been the case. Any background investigation provides the race, gender, and economic status of a candidate. The reason interviews with family and friends is done is to find out more about them personally. Nowadays, if the candidate puts self-disclosing information on social sites or in forums it makes it more obvious, but most of it could always could be found out one way or another if some specific issue was very important to the employer.Such investigations are not done only to eliminate people for petty purposes, but also to find out if the employee will be able to do the job effectively or is likely to do the job effectively; and is likely to fit into the work environment and be successful. That is wise of an employer and within their legal rights to do so. It is within the legal rights of a candidate to refuse to provide any information at all, but they won’t be hired if they don’t provide it, because employers know it can make a difference in hiring outcomes.The bottom line is that some people will probably always think no investigation should be done into their private lives, while some will maintain that our work is often a reflection of our private lives and should be considered, within the law. Employers, colleges, volunteer groups, etc. will always maintain that anything that helps them make better decisions is valid, while some candidates will feel the information is being misused.Being self-employed is the only way to keep one’s life completely private; and some potential customers will not do business or will do business, based on what they hear from a neighbor or what they find on the Internet.

2. “Should an employer look at social sites and use things said on those site for or against the employee?” Those are examined on a case by case basis if a court feels there is a protected speech issue (whistle blowing, for example, about illegal activities). But otherwise, an employer has the right to fire someone for no reason or for a reason and what they read might be a reason. If a candidate doesn’t want it known and used against him he has the option to not make his opinion public. That is also true of verbal comments. An employee can whisper something in the break room to a coworker, but would probably figure he’d get in trouble if he walked into someone’s office and said it to their face. An employee might make a racist remark about a coworker, talking to friends over a beer, but he wouldn’t say it in a meeting at work. Making an opinion public means it can be used for or against you personally or professionally. Ask a political candidate about that!It’s a huge misunderstanding to think that if an employer hires someone they have to retain them no matter what. There is no law that requires that.

So, if an employer finds out, through any source; gossip, a report or an item on the Internet that is made public–that an employee hates the company that is paying his or her salary, they can decide to not provide that salary.3. You ask many “what if” questions about how information can be used. There are responses from all perspectives because all general questions have many potentials. Here are a few real life situations about the issue of using deducted information not directly provided by the subject.*A manager sees that an employee wrote a mean thing about him and decides to target the employee for firing. He picks at every little thing he can find and finally has enough to ask for dismissal. *A manager sees that an employee wrote a mean thing about him and declines to recommend him for a supervisor’s job. *A background investigator sees that an employee is in a relationship with a known criminal gang member and recommends that the candidate not be hired as a police records clerk. *A coordinator in a volunteer program for a children’s art program sees that a volunteer applicant has written to several Internet forums saying he thinks laws against child pornography are excessive because a child’s naked body is beautiful. The coordinator doesn’t interview that volunteer candidate. *A church is wanting to hire an IT technician. One candidate has a Facebook page devoted to a rock music group. He lists as a favorite quote: “Getouttamyface, Dirtball.” The other has a Facebook page showing him helping to build a school in El Salvador. Even though the first candidate has more IT experience, the second candidate is the one that is hired. *A lawyer is hiring a secretary and looks at the Facebook pages of several candidates. He passes on the one with several children who writes about their activities every day. He passes on one who often writes to friends about hating her apartment. He passes on one who has a glamour photo. He passes on one for whom he couldn’t find anything on the Internet or in any other resource. He interviews three others who seem competent according to their resumes. *A florist needs an assistant so she puts an ad in the paper and two women respond. She drives by their homes and sees that one is well kept and tidy, with a cute wreath on the door. The other is a blight on the neighborhood, with trash piled up and a dirt yard because the grass hasn’t been watered. She hires the first woman.

Those are all real situations with which I am familiar. I don’t know if the person hired in each situation is any more effective than the other would have been, but that is the way the hiring was done and in each case the results have been fine. I used the last one to show that it doesn’t take the Internet to provide insights about people. The truth is, the person paying the piper calls the tune. If you or I are hiring someone we can do it for any reason we want. Under the law, a larger company (usually ten or more employees) must not make hiring decisions solely based on protected status issues. But even then, there can be exceptions if it can be shown that the issue is very important for the business or organization.

We don’t live in a private world and never have. Technology and our use of it simply makes us more open to more people than before. There are potential problems related to that and potential good, but that is the case in any era. Similarly, the world of work is filled with millions of decisions about people and situations. There are some best practices that apply and some general advice that fits most situations. However, one thing we have found on this site is that every situation also has a unique component that defies a general answer. I hope these thoughts have been helpful. Best wishes! Tina Rowe

Dan Kearney

Tina Lewis Rowe

Tina had a thirty-three year career in law enforcement, serving with the Denver Police Department from 1969-1994 and was the Presidential United States Marshal for Colorado from 1994-2002. She provides training to law enforcement organizations and private sector groups and does conference presentations related to leadership, workplace communications and customized topics. Her style is inspirational with humor.