The widespread diffusion of social media and its increasing use in both personal and professional spheres combined with an abundance of information sustained by increasing out-pouring of private information into public domain, have blurred the boundaries of personal and work identities and generated significant socio-legal, cultural, economic, and psychosocial challenges.
This article is an attempt to address some of the important points in relation to employers’ social media policy, e-Professionalism/digital professionalism, and employees’ use of social media. Therefore, the objective of this article is to shed light on some of current issues and to initiate a conversation regarding relevant opportunities and challenges.
1. Legal issues and reliance on Social Media profiles in hiring decisions
While social media does not affect the content of employment ads significantly, it does change the scope of information about job applicants that is accessible by employers, which in turn raises new and challenging socio-legal and ethical questions.
A vast amount of information and clues are easily available on job applicants’ blogs, Facebook profile, Twitter stream and other online postings. These include information ranging from the applicant’s race and family status, to work attitude, professional culture, and ethics, as well as behavioural indications ranging from attitude and productivity to problems with previous employers, poor work ethics, substance misuse, and more.
Some of this information may be helpful in making a decision about an applicant’s suitability. However, in the same manner that employers should not ask questions that would lead to discriminatory screening of applicants, employers should not seek and particularly should not use any information obtained from social media in a manner that is discriminatory or in conflict with equality legislations such as the Equality Act (2010); examples of this include information regarding an applicant’s race, ethnicity, religion, sexual orientation, and so on. The case of Gaskell v. University of Kentucky is an example of such discriminatory acts.
1.1 Attitude, Judgment and Lifestyle Choices
A more complex question is whether employers should check and consider applicants’ social media profiles when deciding about their suitability for the job. For instance, drunken or inappropriate photos and/or language, profanities in applicants’ Twitter stream or other online postings may reflect the applicant’s lack of discretion or poor professional ethics which will make the applicant a poor choice for employment. However, here again the important question is where to draw the line between acceptable and unacceptable practices. For instance, consider an applicant whose twitter stream or Facebook timeline offer clear evidence of abusive and/or unethical behaviour. An employee hiring this applicant, without considering the existing social media evidence, and assigning him/her to work with vulnerable adults and/or children may be liable for lack of due diligence and negligent hiring. However, at the same time, employers screening applicants based on their “off-duty” activities and/or behaviour may be vulnerable to claims of intrusion and/or lifestyle discrimination.
Companies that hire unfit employees may be held liable for negligence, however, maintaining an effective and delicate balance between due diligence and respect for individual lifestyle choices and privacy requires a proactive and dynamic stance on the part of employers.
1.2. Maintain an open and professional attitude and approach at all times
There are a number of approaches that can be used to address the above dilemmas. For instance one alternative is to assign the review and initial screening of applicants’ social media presence and profile to a neutral party such as an outside agency or an expert staff in human resources department who is not directly involved in the actual hiring decision.
Another way to mitigate any negative perceptions that can lead to an erosion of trust and/or claims of intruding on an applicant’s privacy is to obtain their consent for conducting a social media check about the applicant. However, it should be noted that such consent does not offer the employer “carte blanche” to comb through an applicant’s digital foot print (blogs, Facebook pages, Twitter feed, etc.) for personal information, and/or to infringe upon the applicant’s privacy or lifestyle choices.
Furthermore, given the easy accessibility of information, employers should be wary of giving false reasons and/or information in trying to explain their decision. In the world of social media, the applicant can easily check the veracity of any such claims. For instance, telling an applicant that a given position was eliminated or assigned to an internal and/or more experienced applicant, if false, may affect the reputation of the organisation negatively. Most LinkedIn profiles include information about the individual’s job title, qualifications, current and past experience and employment positions. Therefore, an online search for a given position and/or organisation may easily reveal who left the organisation; whether that position was filled; and the qualifications and background of person filling that position.
2. Monitoring of employees’ social media use and online postings
The abovementioned dilemmas are not only related to hiring decisions. These issues represent persistent and on-going challenging for effective management of professional ethics, identity, as well as employers and employees relationships. Below are some examples of such on-going challenges.
2.1. Questions of Privacy
Employers can monitor employee’s use of social media on company-issued devices without concerns about invasion of privacy so long as the employer complies with applicable laws, and has a clear policy guideline that is communicated to all employees to ensure they are made aware of such oversight of information.
However, in the absence of such clear policy guidelines, the employees may have expectations of privacy with regards to the information stored and the communication that takes place on their work equipment/devices that may complicate the situation in relation to monitoring of information . Hence, the importance of a clear social media policy for organisations and all employers. As a general rule, aside from circumstances where there is a clear justification, employers should be wary of accessing password-protected materials without the employee’s consent.
Employers may have certain liabilities in relation to company-supplied devices toward their employees and third parties. Therefore, use, ownership, oversight, and access to such devices and any information and/or communication stored on them, should be clearly defined in appropriate policy guidelines. Furthermore, the employers’ social media policy should focus on employees engagement and online behaviour and as such, should include and encompass both company-supplied as well as privately owned devices used/operated by employees.
2.2. Employees’ use of Social Media outside working hours
Can an employer discipline and/or discharge an employee when social media usage takes place outside of work (out of working hours) but either interferes with productivity, or compromises internal/private information, or reflects poorly on the organisation/employer‘s reputation? Companies have terminated employees for making negative comments about their employers and co-workers, or comments that the employer considered derogatory or damaging to its reputation and/or when the comment or behaviour could negatively impact the employee’s performance and/or the employer’s business. However, this does not mean that employers can or should block employee’s legitimate expression of grievances.
The case of American Medical Response of Connecticut, Inc. v. International Brotherhood of Teamsters in the U.S. reflects the importance of a well balanced social media policy that is applied with fairness, care and due diligence. Hence,
a. An overly broad social media policy may be considered too invasive or may be perceived as discouraging employees from engaging in concerted activity;
b. Terminating an employee who has posted criticisms of a supervisor may be construed as an attempt by the employer to discourage employees from expressing grievances and engaging in protected concerted activity.
For instance, Facebook discussions among employees resulting in expression of grievances may be protected by employees’ right to collective/concerted activity. Furthermore, prohibiting employees from making any disparaging remarks regarding the company and/or their co-workers may be interpreted as an attempt to interfere with their right to express grievances.
With the ever evolving sociality of social media and new modes and forms of communication and assembly, it is important to deal with such situations based on expert advice and through dialogue and a mindful approach that does not interfere with employee’s protected rights.
3. Employer’s Liability for Employees’ Conduct
An employee’s use of social media and online postings/engagement could result in liability for his/her employer. For instance, an employee inadvertently divulging private or sensitive information in his/her conversations or postings on social media, or an employee using social media to harass a colleague or other individuals, could result in civil liabilities/penalties for the employer.
Therefore, given the prospect of liability some employers block access from work-supplied devices and on company network, and prohibit employees’ use of social media during their working hours even from the employee’s own devices. Such an approach is as inefficacious as it is draconian, as many employees continue to engage in social media activities concealed under the veil of anonymity or by using private message functionalities of social network platforms (e.g. Twitter DMs, LinkedIn private messages, etc.). Furthermore, such a non-engagement policy is counter-productive since not only do most social media sites offer access to information that can be helpful for employees professional development and/or assist them in performance of their duties, but also, with increasing use of social media by users of services, service providers and their employees will have to increase the frequency and quality of their online engagement to ensure a continuous service with consistent quality.
4. Dealing with Digital and Social Media Revolution through Engagement
Negating or trying to resist the irreversible ‘reality’ of social media revolution can be detrimental to the organisation and its sustainability, and may be similar to the proverbial “standing in front of a runaway train”.
Social media is about engagement, collaboration and co-production. Therefore, non-engagement approaches such as an outright ban on employees’ use of social media are not only counter-productive and ineffective, they can prove highly damaging, if not detrimental, to the organisation and its’ long-term prosperity and survival. Instead, employers should leverage the opportunities offered by new technologies and social media platforms to enhance and transform their services and to develop the e-professionalism/digital professionalism of their employees. Indeed in current context, such a proactive and insightful approach can catapult the organisations’ position and competitive edge.
The rapid development of technology have transformed both the medium and the message, and the new modes and medium of communication have redefined the very notion of connectedness, relationships, and private and public spheres. In this context, organisations and employers are faced with an ever evolving sociality and more fluid conceptions of private and professional boundaries that lead to novel forms and definitions of assembly, collective action, and concerted activities, and the manner employees relate to one another and to their employers. These changes offer unprecedented socio-legal, cultural and economic opportunities and challenges.
Hence, it is crucial that organisations and employers seize this opportunity and adopt a proactive stance that is supportive of their employees’ professional development and greater e-professionalism/digital professionalism, and that taps into new opportunities and synergies offered by technological innovations and social media platforms to leverage their competitive edge. Indeed, employers can establish a meaningful social media strategy through commitment to an online presence, continuity of engagement, and consistency of message accompanied with clear guidelines for their employees.
Finally, it is important to recall that ethics and professional conduct are defined by society, culture and generations. Therefore, the evolving professional, social and cultural landscape challenge and change the prevailing notions and definitions of acceptable and unacceptable behaviour, and that means that at times the context and interaction may define the rule.
Claudia Megele (@ClaudiaMegele) is the founder of @SWSCmedia and @MHchat Senior Lecturer and module leader at University of Hertfordshire and has published her work with various publishers including Cambridge Scholars Publishers, Palgrave Macmillan, Sage Publications and others.