Did you hear the one about the Texas teenager fired for a tweet about her new job – even before she started? Yes – that happened in Texas when a Jet’s Pizza employee took to Twitter to post about the “f*** a** job” she was about to start. On the day she was to start, the store owner saw her tweet and replied: “no… you don’t start the FA job today! I just fired you!”, as reported by Time. Although this tweet cost someone her job, social media provides land mines for employers and prospective employees alike.
Employers Need to Exercise Caution When Using Social Media
In Michigan, the Texas Twitter termination would have been permissible only because the employer did not request password access to the prospective employee’s account. Michigan employers need to be aware of the “Internet Privacy Protection Act” (“IPPA”). The IPPA imposes criminal and civil penalties on employers for requesting an employee or job applicant to permit access to that person’s personal internet accounts, such as Facebook and Twitter, by providing their private passwords. The IPPA provides that violations are punishable by fines up to $1,000 and possible attorney fees.
Additionally, an employer may not discriminate against a job applicant based on factors such as age, religion, national origin, marital status, pregnancy status or disability, all of which are often available on an applicant’s social media site. In Gaskell v. University of Kentucky, 2010 WL 4867630 (E.D. Ky. Nov. 3, 2010), the plaintiff was not hired after another employee viewed the plaintiff’s personal website and sent an e-mail to the hiring committee expressing concern about the plaintiff’s religious beliefs. The Court found that there was an issue for trial as to whether the plaintiff’s religious beliefs were a motivating factor in the University’s decision to not hire him. The University ultimately settled the case by paying the plaintiff $125,000.00.
Job Applicants Can Cost Themselves Jobs Through Social Media
Job applicants should also be careful about social media usage. A Social Media Survey conducted by Jobvite found that 93% of recruiters will review a candidate’s social profile before making a hiring decision and 55% of employers have reconsidered a candidate based on what they find on Facebook, Twitter or LinkedIn.
The reasons for those reconsiderations? Not surprisingly, any reference to illegal drugs leads the pack of reasons to negatively reconsider an applicant. Posts of a sexual nature, those containing profanity and those referencing alcohol or guns also negatively impact an application according to the survey. Even bad spelling and poor grammar create opportunities for a prospective employer to reconsider hiring someone: 66% of hiring managers said they would hold poor spelling and grammar against candidates. So, what type of social media posts can help your perception? Posts about volunteering or charitable donations created a positive impression with 65% of recruiters according to the survey.
The Bottom Lines
For employers, to minimize the chance an applicant may make a claim for discrimination, employers should:
1) Have a written policy detailing which social media sites are used to screen applicants and what information is considered;
2) Keep records of what negative information was reviewed to disqualify a candidate;
3) Become familiar with your state’s laws on accessing job applicants’ social media.
For job applicants:
1) Make your social media sites (other than your LinkedIn profile) private – although this will only minimize and not eliminate the likelihood of an employer finding information about you;
2) Add volunteer and charitable works to your LinkedIn profile;
3) Most importantly, don’t ever publish anything you wouldn’t want to discuss in an interview.
Eric A. Parzianello