For employees at private companies, there is no such thing as free speech in the workplace. Under the employment-at-will doctrine, employers are free to terminate an employee for any reason and no reason at all. Employees can be fired for saying something stupid, racist or just plain disrespectful. In many cases, if an employer does not take disciplinary action against an employee for such behavior, the employer risks a costly lawsuit. While employers do not need to monitor employee speech specifically, they may need to take action when the bad words of an employee are brought to their attention. So, why are so many employers still hesitant to review the speech of potential candidates?
Today, employers are blessed and cursed that the world has become more transparent, thanks to social media and the 24/7 news cycle. Depending on privacy settings, employers can see what people were up to 10 years ago. They can look at Twitter pages to see someone’s “off the cuff” statements about all kinds of things. This information can help answer some typical hiring questions:
- How will this candidate respond to stress? A rant about a delayed flight that went on for six tweets with escalating hatred could be a good indicator.
- Will this candidate be a good representative of our company? An Instagram post of her doing a keg stand in a company T-shirt could be OK for a beer distributor but not so great for a Mothers Against Drunk Driving chapter.
- Will this candidate be a positive influence? Chronic Facebook complaints about her car, roommate, dog, etc. could all indicate a Negative Nelly who could become a toxic employee.
- Is this candidate passionate about the job? Tweets sharing articles about her job and what that job will look like in the future are excellent indicators of passion.
Social media and news websites give a more complete picture of a candidate and can provide information that can reduce an employer’s risk too. Research might turn up postings of violence or discriminatory comments. It can unearth intolerance that, when brought into the workplace, can create liability under discrimination statutes or other liability, like negligent hiring.
Employers should use the internet to research candidates, with the following guidelines:
1. Decide what will disqualify a candidate well in advance. When a position becomes vacant, ask the decision-makers what statements or conduct on social media or in the news would disqualify the candidate. Employers can have standard disqualifiers, like violence, bad grammar, bigotry, etc., but there may be a few disqualifiers for a specific job. Making these decisions early limits the potential that the disqualification criteria is based on a particular candidate or influenced by unconscious bias.
2. Make HR do it. Because social media profiles are rife with protected-class information, looking at the profiles creates a risk of discrimination. HR is particularly aware of this and the role of unconscious bias. HR professionals are also less likely to be decision-makers. For these reasons, they can compare the disqualifier list to what they find in an internet search in as neutral a way as possible. HR can disqualify a candidate unilaterally without consulting the hiring manager with a lower risk of discrimination.
3. Research late in the process. Researching all 600 candidates for a particular position is a huge waste of time. Research when you’re down to your last few candidates.
4. Ask the candidate. Internet research is not perfect. It can uncover information on the wrong person or something that can be explained. Employers should ask the person they are about to disqualify about the disqualifying post or information. The candidate might have a good explanation. Even if it is something for which no reasonable excuse exists (e.g., bigotry), by asking, employers get the feedback to the candidate. Occasionally, it will be appropriate to give the candidate the job despite what HR finds, but an employer will never know unless the candidate is asked about it. Kate Bischoff