Human Resources

Social Networking, Management Responsibilities, and Employee Rights: The Evolving Role of Social Networking in Employment Decisions

Steven L. Thomas & Philip C. Rothschild & Caroline Donegan

Published online: 11 September 2014 # Springer Science+Business Media New York 2014

Abstract In the past decade, social networking sites (SNSs) have transformed the way people socialize. They allow individuals to connect globally and instantaneously. These connections, however, generate user profiles that provide an abundance of personal and behavioral infor- mation that can be used as a management tool in the selection process and as a way to monitor potentially detrimental employee activities. Employers can, with relative ease and low cost, access information that would not have been otherwise available. Because employees use and view SNSs in markedly different ways than employers view and use them, these conflicting perspectives and different interests pose serious issues as SNSs continue to grow. Regulations typically lag technology, and research regarding SNSs is limited. Thus, while there is clear potential for using SNSs as human resource tools, there are few legal guidelines controlling their use, little knowledge of their effectiveness, considerable disagreement over privacy and ethical issues, and some potential for abuse. Consequently, proponents and opponents continue to debate the legal, ethical, and practical issues of using SNSs in both staffing and employee monitoring processes. This paper examines these issues and provides guidelines on how managers should use SNSs in managerial decision making.

Keywords Social networking . Reference checking . Employee selection . Employee privacy. Electronic monitoring

Introduction

The process of social exchange for most of us invokes thoughts of face-to-face communication and networking at luncheons, conferences, or dinner parties. Over the last two decades, however, technology has challenged traditional methods of interaction and the emerging

Employ Respons Rights J (2015) 27:307–323 DOI 10.1007/s10672-014-9250-5

S. L. Thomas (*): P. C. Rothschild Department of Management, Missouri State University, 901 S. National, Springfield, MO 65897, USA e-mail: [email protected]

P. C. Rothschild e-mail: [email protected]

C. Donegan Lockton Companies, Kansas City, USA

internet has created new mechanisms of commercial engagement and social exchange (Roberts and Roach 2009). The face of social behavior has changed markedly as individuals, particu- larly younger members of society, increasingly turn to online socializing via social networking sites (SNSs). One largely unanticipated but opportunistic development of this trend has been the adoption by managers and administrative professionals of SNSs as human resource tools, providing both innovative opportunities for organizations and new challenges for managers.

The use of SNSs is ubiquitous with millions of individuals interacting daily on more than 200 SNSs (Wikipedia 2014). According to a 2014 Pew Research study (Duggan and Smith 2014), some 73 % of online adults now use a SNS of some kind. Facebook remains the dominant social networking platform with the site currently listing over 1.23 billion monthly active users as of December 2013, with 757 million daily active users (Facebook 2013). Sixty- three percent of Facebook users visit the site at least once a day, with 40 % doing so multiple times throughout the day. A striking number of users are now diversifying onto other platforms like Twitter, LinkedIn, Instagram, and Pinterest. Specifically, and some 42 % of online adults now use multiple SNSs (Duggan and Smith 2014).

Social networking sites exist to facilitate the speed and ease of communication with large numbers of like-minded individuals, and make it easy to build online communities of people who share similar interests (Sydell 2010). The SNSs encompass various designs: posting blogs and discussion forums, sharing links, uploading and posting pictures, streaming video, and displaying personal information and interests (Kluemper and Rosen 2009). Users are connect- ed virtually with each other with updates by the second (Clark and Roberts 2010).

Because of the growing popularity of Facebook and other SNSs managers, administrators, and human resource professions have begun to explore opportunities to leverage the wealth of information provided by SNSs. Employers have come to see them as unique ways to screen job applicants and otherwise facilitate the staffing function because social networks can provide job-related information about applicants that may be more transparent than that provided by other selection devices. In addition, some companies are turning to SNSs to monitor current employees for evidence of behaviors or activities that could prove embarrassing or harmful to the organization.

While SNSs can have a significant impact on managerial decision-making, their use may also give rise to a variety of legal and ethical considerations regarding how SNSs are used, what information is collected, and how that information is used to make decisions. This paper explores the growing use of SNSs in decision making and the nature of that use, as well as some of the legal and ethical controversies that have arisen or may arise in the future. In closing, we offer some suggestions and cautions regarding the use of SNSs for managers.

Using Social Networking Sites in Staffing

It seems clear that employers are placing increasing emphasis on the use of SNSs as staffing tools. The use of SNSs in staffing supports at least two major functions: screening applicants and generating selection information. One area in which SNSs monitoring is potentially important is in employee screening. In 2009, 22 % of hiring managers, up from 11 % in 2007, used SNSs to screen potential employees. In 2009, a remarkable 40 % of managers who were not screening SNSs planned to begin using them in 2010. In addition, one-half of all employers who attended college career fairs used the Internet to screen college candidates (Kluemper and Rosen 2009). It is reasonable to suggest that today’s job applicants can expect that the likelihood of being screened via social media is very high.

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For both practical and legal reasons, background investigations and reference checking have long been used as part of the hiring process, but the reliability and validity of both selection tools is low (Heneman et al. 2003). Because of the cost and time involved, thorough background investigations are conducted strictly for critical jobs and serious candidates, or for jobs that require it as a business necessity (Clark and Roberts 2010). In general, using SNSs is less time-consuming, may be more cost effective, and may provide a more accurate snapshot of a candidate’s character than traditional interviewing processes (Kluemper and Rosen 2009; Kluemper, Rosen, and Mossholder 2012).

Proper background screening is important because companies must exercise due diligence in hiring in order to avoid liability for negligent hiring or illegal harassment, both of which can be costly and embarrassing for employers. Negligent hiring occurs when an employer fails to exercise sufficient care in screening applicants and, as a result, fails to uncover aspects of a candidate’s past behavior or proclivity that make him or her a potential danger to coworkers or the public (Clark and Roberts 2010). In cases where the applicant harms a coworker or client after he or she is hired, and the employer should have foreseen the unsuitability of the applicant, had the employer conducted appropriate investigations or background checks, the employer can be sued by the victim for negligence (Elzweig and Peeples 2009).

To avoid negligent hiring, employers often conduct criminal background checks, thorough- ly check the applicant’s references, and conduct other appropriate investigations. While these activities are important, employers can exercise even greater diligence via screening SNSs. They can access information about a candidate’s behaviors, activities, and proclivities from his or her SNSs that may not be found in other screening sources. When viewing profiles, it is at least somewhat likely that an employer can get a sense of applicant tendencies to engage in certain types of behaviors or conduct (Clark and Roberts 2010). Since the cost of screening via SNSs is minimal, it would seem worthwhile to screen as a precautionary measure to avoid exposure and maintain a suitable work environment (Klein and Pappas 2010).

One of the unfortunate opportunities concomitant with the development and growth of the Internet has been the creation of unique vehicles for harassment in cyberspace. Employers are rightly concerned about their liability for the actions of employees who engage in harassing behavior. Dealing with harassing conduct in the physical workplace is difficult enough. It becomes even more taxing to address when employee harassment is the result of logging onto SNSs, engaging in offensive behavior and disrupting other employees’ work via online conduct. Whether harassing conduct is face-to-face or online, employers face similar levels of liability (Clark and Roberts 2010). It becomes tougher still to address harassment within the context of the “virtual” workplace in which employees conduct business at home or on-the-go leaving employers few direct alternatives to assess behavior.

If an employee is the target of online harassment by other employees based on conduct originating in the workplace, the employer may face liability for the harm caused to the victim. The degree of culpability depends on the nature of the harassment, the relationship of victim to perpetrator (i.e., whether it is a supervisory relationship), the employers constructive knowl- edge of the conduct (did the employer know or should have known), and the employer’s response to employee complaints. If employers do not take preventative measures such as monitoring computer behavior, and the victims present evidence of the company’s constructive knowledge of harassment, or if the company refuses to take action when an issue is brought to their attention, the employer’s liability can be substantial (Blank 2010). The two major lines of defense for the employer include (1) the imperative to exercise reasonable care, and (2) the obligation to develop valid and broadly applicable anti-harassment policies. The exercise of reasonable care may involve monitoring and periodically screening employees’ SNSs, and

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keeping electronic records of SNS usage as practical tools for employers due to the risk of litigation involving workplace harassment via the Internet (McKenzie 2010).

Social Networks as Selection Instruments

Many employers see promise for SNSs that go beyond a screening function to their use as a predictor of job performance. Much of this is due to conventional wisdom regarding the nature of the information contained in SNSs. In theory, a SNS provides a source of relatively transparent biographical data. As the individual contributes to a SNS, he or she will be focused on personal life information and actual behaviors rather than on creating an image for an employer. Employers believe SNSs are more “honest” than what applicants create through resumes and covers letters intended to manage impressions and showcase the ideal self (Slovensky and Ross 2012). Careful analysis of SNS information may reveal aspects of behavior, interests, personality, or biographical data that can help managers to either reject or affirm a candidate.

According to the findings from a survey by Clark and Roberts (2010), human resource professionals believe that using SNSs in employment decision making is an acceptable practice. To these individuals, it is a convenient, inexpensive, and fast way to gain a comprehensive overview of a candidate (McKenzie 2010). It allows them to easily learn about an individual’s “character” and gives them the ability to predict the types of decisions an individual will make (Clark and Roberts 2010). Information that is not on resumes can be discovered on SNSs (Elzweig and Peeples 2009). Also, the information can be used to build conversations and connections during the interview (Smith and Kidder 2010). Essentially, it is another insight beyond the interview (Kluemper and Rosen 2009).

Studies generally provide support for managers’ perceptions of the value of screening using SNSs, but offer less insight into its objective utility. Some research found that while candidates were a bit more likely to be rejected on the basis of information contained in SNSs (more than one-third of hiring managers chose not to hire a candidate because of information found on a SNS), almost one-fourth found favorable information that boosted the candidate’s image (Elzweig and Peeples 2009). Similarly, CareerBuilder conducted a survey of 2,600 managers and 45 % affirmatively answered to screening SNSs of job candidates. Of these managers, 35 % discovered something that caused them to reject a candidate such as poor communica- tion, false qualifications, provocative photos or comments, or low levels of professional appearance. By contrast, 18 % of the managers found something that affirmed a hiring decision such as evidence of good communication skills, confirmed qualifications, or high levels of perceived professionalism (McKenzie 2010). In another survey of hiring and recruiting professionals, 63 % admitted to frequently searching SNSs for candidates. Of these surveyed, 70 % have rejected a candidate based on online data, with the major criterion being lifestyle concerns (Sprague 2011).

Though increasing in popularity, can SNSs analysis be shown to exhibit reliability and validity? Kluemper and Rosen (2009) examined the ability of evaluators who screened individuals’ SNSs and proceeded to draw conclusions about their personality, intelligence, and performance. These inferences made by evaluators ultimately aided in employment decision making. Their findings indicate a significantly positive relationship between evalu- ators’ ability in screening SNSs and their prediction of the three variables. As a result of this finding, general conclusions regarding the screening process of SNSs were formulated. The information posted on profiles accurately represents an individual because it is current, ongoing behavioral activity. Social networking sites predict job performance better than

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popular self-report tests, which are usually given to interviewees. Also, organizational fit can be determined by browsing online profiles (Kluemper and Rosen 2009).

Rigorous research on the reliability and validity of using SNSs to make selection decisions is in its infancy and it remains to be seen if methods of profile analysis can yield results that generalize across occupations and organizations. Which specific applicant attributes are discernable through profile analysis and which job outcomes are associated with them have not been widely reported. It may be that SNS analysis may be similar to biodata items of the past and depend very much on the specifics of the occupation and the organization, that they lack generalizability and require validity to establish by the individual organization. Never- theless, results to date seem to be promising.

As discussed later, many privacy advocates and other critics have questioned the propriety of using SNSs for gathering information despite their potential. However, proponents of using SNSs in the hiring processes argue that since information posted on SNSs is public informa- tion, and since employers have an obligation to protect the organization by using relevant information at their disposal, screening via SNSs is justified.

Users voluntarily post personal information to their profiles (Roberts and Roach 2009) and about half of social media users report some difficulty in managing the privacy controls on their profile (Madden 2012). As a result, many are publishing that information to the public, allowing anyone and everyone access to it (Clark and Roberts 2010). Because viewing public documents is not regulated, employers have no legal obligation to inform employees that they will view their profiles (Jones and Behling 2010). Thus, most employers have little reluctance to access and use SNS information and reject arguments suggesting that SNSs should not be used as a tool in their employee decision-making (Greenwald 2008).

A central argument for using SNSs in staffing is that the content of online profiles is filled with hidden (or sometimes not so hidden) truths. Wall postings from “friends” may be more compelling than the controlled image of one’s self a job applicant tries to convey via the resume and job interview process. What others say may create a different image than what he or she has to say about his or herself (Smith and Kidder 2010). Status updates, posted comments, wall comments, “tagged” pictures, personal information, or interests listed provide an array of behavioral information, or information that might allow the analyst to infer characteristics such as big five personality dimensions. It displays “regular” behavior of an individual versus being in an interview setting where he or she is polished to perfection (Kluemper and Rosen 2009).

Because SNSs are considered to be effective as a screening tool and as a predictor of job- related information, employers feel they have both a need and a right to monitor SNSs in order to avoid mistakes in hiring (Mitran 2010). Though many applicants might not be thrilled by the prospect of a perspective employer scanning their Facebook site, the majority of job applicants seem to recognize that the employer has the right to do so. As evidence, an extensive study conducted by the University of Dayton discovered that 68 % of students surveyed felt that it was not unethical for employers to look at SNSs as part of job screening activities (Clark and Roberts 2010).

Using Social Network Sites to Monitor Employees

The use of SNSs is not limited to gathering information for selection decisions. Monitoring the activities of current employees using SNSs appears to becoming more commonplace. Man- agers, concerned about unproductive and dysfunctional employee behaviors, realize that SNSs may provide an alternative mechanism to track activities of employees. Companies maintain

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that employees have an obligation to act in ways that are not detrimental to the organization, to responsibly choose what content is appropriate on their SNS, and to adhere to company computer usage policies. Companies, in turn, have a right and a need to monitor both work behaviors and online content, and to discipline employees who engage in inappropriate activities (Clark and Roberts 2010).

It is clear that social network communications can seriously damage an organization’s reputation. For example, in 2009 a YouTube video was posted showing workers intentionally contaminating food at Domino’s Pizza just before delivery. Although the company responded within 24 hours, its reputation was compromised (CU360 2010), and according to YouTube there have been 1.2 million views to date. A recent YouTube search by one of the authors using the phrase “employees behaving badly” produced an abundance of downloaded candid videos including a Federal Express employee throwing a customer’s computer over a fence, San Francisco transit employees fraudulently avoiding traffic tickets, a UPS worker stealing an iPad Mini, Air Canada baggage handlers stealing items from passenger luggage, and a host of employee incidents including fighting, engaging in pranks, and generally demonstrating poor customer service. Many of these incidents were viewed by hundreds of thousands of people (YouTube 2014)

Because of incidents like those described above, employers argue that they have a legitimate right - probably an obligation - to exercise reasonable care by using available tools, such as monitoring SNSs, to prevent employee malfeasance. The claim is that monitoring SNSs address major organizational concerns including sustaining positive brand reputation, maintaining property rights, and minimizing liability (Mitran 2010), protecting the organization and insuring the safety of all employees (Peluchette and Karl 2009), and identifying employees who may be harming the company’s mission and reputation (Davison et al. 2011).

Companies argue that they must be free to monitor SNSs as long as their activities do not violate specific laws, because they have a compelling need to protect their reputations and their employees. To illustrate the extent of that viewpoint, in a 2009 survey of Deloitte’s executives, 60 % claimed that they deserved to know how their employees were expressing themselves and the organization online. It is detrimental to fellow coworkers, managers, and the company as a whole, if an employee is posting crude comments, pictures, statuses, etc. on his or her profile, or posting sensitive business-related information. The possibility that customers, potential clients, coworkers, or other organizations will view such information is exceptionally high, and many organizations feel that they have a right and an obligation to monitor social networking activities (Clark and Roberts 2010). That right has some legal support as illustrated in a case upholding a decision in favor of a car dealership for firing a BMW salesman for posting sarcastic comments and photos about a company sponsored event. The court ruled that “posting photos and comments at the employee’s sole discretion and without any consolation from workplace,” was an employment violation (Ghoshray 2013).

Electronic Monitoring and Privacy

Most employees are aware that anything posted on a work computer may be monitored and that many employers do actively monitor computer use at the office. In fact, surveys reveal that more than half of all employers monitor employee email, and many organizations have individuals assigned to read employee emails (Zeidner 2007; Leffler and Palais 2008). A large majority of employers monitor internet use (Zimmerman 2002) and block access to at least some form of web sites such as pornography or gaming sites (Roberts 2008).

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Electronic monitoring by employers is common and normally legal as employers hold property rights to their equipment, including computers. Additionally, they can be liable for many forms of inappropriate activity conducted by their employees on company equipment (Elzweig and Peeples 2009). Communications in SNSs are informal and frequently less guarded than other forms of communication. While most content is innocuous and includes nothing more than careless or thoughtless speech not designed to cause harm, other content can be libelous and incendiary. Therefore, in situations in which employees can access their SNSs, employer monitoring may occur for liability purposes.

In addition to issues of liability, employers may focus on productivity effects by tracking the amount of time employees are visiting SNSs and recording content of the sites to identify any inappropriate content or behavior. Employers maintain that their equipment is to be used for business-related purposes only, not personal, even in instances when an employee works out of his or her home (Blank 2010). For example, employee use on company time can impact productivity when employees invest significant amounts of working time engaged in on-line social activity. One survey found that approximately 51 % of the total workforce will access Facebook during work time for an average of 15 minutes per visit. This translates to a 1.5 % loss in productivity (Delikat, Pitcher, and Becking 2011).

The only way to limit legal exposure and the damage of excessive on-the-job SNS use on productivity is by monitoring. Interestingly, there is some evidence that many employees would not alter their current practices even if companies engage in monitoring their online activity. Even when corporate policies prohibit use of social media, half of employees surveyed admitted to ignoring corporate policies at least once a week. A report by Deloitte in 2009, for example, revealed that 49 % of employees would not change their social networking behavior if their organizations set new guidelines, and 61 % of employees claimed that their online behavior would not be affected if employers began to monitor their profiles (CU360 2010). Further, some observers caution employers not to be overzealous when implementing social networking use guidelines as prohibiting employees from using SNSs may negatively impact employee morale and creating a complete ban during business hours is difficult to monitor and enforce (Elefant 2011).

Opposition to Managers Searching SNSs

As long as employers do not base decisions on protected class membership (race, sex, age, marital status, etc.), then screening and monitoring job candidates and current employees is generally legal (Roberts and Roach 2009). The use of SNSs for screening purposes has low legal implications because the information is posted in public domain (Dennis 2011). How- ever, even if it is legal not all professionals agree that it should be legal, that it represents moral or ethical conduct, or even that it has a business justification. In this section, we explore the reasons behind the opposition to using SNSs in workplace decisions.

Social networking sites are a new era of communication that strengthens and creates relationships among friends, family, and global entities. In 2006, a survey conducted by Pew Internet and American Life Project reported that 34 % of respondents took advice from fellow users of their particular SNS, and 84 % joined a group or organization through their SNS. As more and more employers begin to screen job applicants’ SNSs, the line between personal and work life becomes blurred. Privacy advocates argue that conversations via SNSs are just the same as conversations that would take place on the telephone or at a restaurant. This communication mechanism will be destroyed if individuals fear that em- ployers could possibly judge them on their social interaction. Employees desire separation

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between their personal and work lives, and some argue that employers who hack into job candidates’ SNSs are forfeiting the competitive advantage of employee privacy (Clark and Roberts 2010). Individuals who oppose screening job applicants’ SNSs are concerned with the legality of privacy issues, violations within practical and ethical dimensions, and the discrimination that may result.

Invasion of Privacy

There is a disconnect between employers’ and candidates’ perceptions of the function of SNSs. Employers are trying to determine something regarding the individual’s character, demeanor, or behavior, while candidates are using SNSs as a social activity and a way to interact with friends (Clark and Roberts 2010). Clark and Roberts take a firm stand that companies have a responsibility to ensure employees’ personal privacy. Employers do not need to invade their employees’ “liberty to do as they will” (Clark and Roberts 2010, p. 514). They need to look at the situation from employees’ points of view, and draw the line between personal and work life (Greenwald 2008). Employees use their social time as a way to relax, vent, and cope with what is going on in their lives. They do not believe that it is their employer’s right to constantly watch them and question their behavior outside of work. Current employees and applicants should not have to forfeit all claims to privacy as a condition of work (Smith and Kidder 2010).

Further, many see SNSs as a parallel to face-to-face gatherings where in the latter it would be totally unacceptable for employers to spy on employees or candidates. For example, it would be similar to a recruiter following an applicant around at a bar, listening to his or her conversations and observing his or her behavior. Most individuals would consider this to be an extreme and inappropriate way of hiring (Clark and Roberts 2010). Just as individuals interacting at a bar is a social interaction, so are SNSs. And because people maintain social boundaries and show different sides of their personalities depending on the demands of the current social situation (Farnham and Churchill 2011), employers should have no business reviewing and making assumptions about the behavior because it is not related to the job.

Employees have a right to personal privacy under the U.S. Constitution, by both federal and state regulations, and under common law (Ledvinka and Scarpello 1991; Scherzer 2007). However, the right to privacy has historically been limited in the private sector workplace, and employees traditionally gave up most privacy rights when accepting employment. In recent years, though, the trend has been the expansion of privacy rights because of expanded collection of personal information and potential misuse (Ledvinka and Scarpello 1991). Seldom have privacy laws kept up with technology, and the legality of employees’ privacy with regard to employers screening SNSs is unclear because technology has outpaced regu- lation (Blank 2010).

Although most privacy laws do not specifically cover SNSs, some argue that they can arguably be adapted and interpreted to do so. Elzweig and Peeples (2009) assert that the information that is used within the termination and hiring processes must be work-relevant, and employers must inform current and potential employees of what is being viewed. Scherzer (2007) implies that evaluating an individual’s SNS profile without his or her knowledge is similar to conducting a background check without first informing and/or getting the em- ployee’s consent. The claim is that this is an illegal action that violates the Fair Credit Reporting Act (FCRA) which requires employers to get consent from and disclose to the candidate that the company conducts various background searches during the hiring process (Grant Harpe 2009). The claim is that the FCRA can be extended to include SNSs, particularly

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when an employer creates a falsified SNS profile or uses a third party to view a candidate’s profile and makes an employment decision. The third parties are frequently coworkers, subordinates, friends or recruiters. Preston (2011) reported that 75 % of recruiters are required by their companies to do online research of potential employees. Most of them report they have rejected candidates because of information found online.

One privacy, security, and information management industry expert, Michael Overly, claims that using social network information is akin to acquiring a credit report without providing the required FCRA written notice and that simply surfing the internet is also a likely FCRA violation (CSO 2011). Overly states that violations of the FCRA using social media searches are widespread and that they could expose employers to substantial liability.

By contrast, others in the business community argue that much of this is fear-mongering and that claims such as Overly’s have little legal support. The notion that information obtained by employers via social media constitutes a credit report as defined by the FCRA is, at best, a stretch. While the FCRA does require disclosure and permission where an external agency is used to collect information on an applicant, it does not restrict the employer’s ability to conduct background checks in-house. Most job applications suffice as notice and permission for in- house background investigations by securing the applicant’s signature under a set of dis- claimers, one of which is typically a notice of background investigation and a request for permission.

Other critics of social media searches suggest that employers are fundamentally violating the SNS user agreement that they electronically sign when creating a profile (Elzweig and Peeples 2009). It states that an individual will use his or her profile to socially connect with other users, not for commercial purposes, and users will not misrepresent themselves (Jones and Behling 2010). Employers are basically using SNS profiles to do the opposite. These critics claim that employers need to stop using SNSs as a way to snoop into employees’ personal lives (Elzweig and Peeples 2009) and that employers buy labor, not what people do outside of work (Clark and Roberts 2010).

Others claim that when employers use loopholes to justify searching SNSs, it sets a negative tone in the workplace and communicates a norm of unethical behavior: “ask employees to lie for you and pretty soon they will lie to you” (Smith and Kidder 2010, p. 498).

In addition, employers have long enjoyed protection from legal exposure under the common law of qualified privilege doctrine. This doctrine applies to providing reference information and the courts have taken the position that the public interest is best served by free exchange of information so long as there is no intent of malice or discriminatory purpose (Sovereign 1999). Although qualified privilege applies to information shared between em- ployers and has yet to be applied to social media, it seems reasonable that if employers can share private personnel records for business purposes, then using public information for the same purposes would also serve the public good.

Perhaps a more compelling argument against screening a candidate’s SNS prior to the interview is that profiles provide answers to questions that are inappropriate to ask in an interview. Even if it is possible to conduct a background check on an applicant without his or her consent, information obtained may still be used illegally. Title VII and other anti- discrimination legislation forbid discrimination based on protected group status and Equal Employment Opportunity Commission hiring guidelines caution interviewers from directly asking an interviewee questions regarding age, gender, race, religious affiliation, or disability. Questions regarding marital status, number of children, political affiliation, socioeconomic status etc., are also viewed as inappropriate (EEOC 2013). By viewing SNS profiles, which frequently include photos of the individual, employers may make either conscious or subcon- scious assumptions about a candidate’s suitability based on inappropriate information or

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characteristics that are unrelated to the job (Elzweig and Peeples 2009). Some of these characteristics, such as one’s race, gender, or family status, may be illegally discriminatory. Carr and Maier (2013) maintain that employers are constrained by governing laws of discrim- inatory decision-making no matter the source of information

Even though employers may lack any intent to discriminate, evidence that employers are looking at applicants profiles might provide at least some prima facie evidence of illegal intent (Jones and Behling 2010). One EEOC definition of discrimination is disparate treatment in which employers intentionally treat individual employees differ- ently from others in the hiring process. A traditional example is sex-plus discrimination in which an employer asks questions about marital status or child care arrangements only to female applicants and uses this in his or her hiring decision (Grant Harpe 2009). If the employer subjects only members of specific protected groups to SNS scrutiny, then illegal disparate treatment exists. Thus, where the interview process is systematically different for different types of candidates the employer may violate the disparate treatment standard (Grant Harpe 2009).

One oddity in the selection process is that applicants who have SNSs are inevitably being discriminated against compared to applicants who do not because obviously only those with SNSs are subject to scrutiny. Approximately, 27 % of all online users report not using a SNS (Duggan and Smith 2014). While this is not per se illegal, an argument could be made that the situation could result in discrimination under the other EEOC definition of discrimination, disparate impact. In disparate impact cases, discrimination exists when seemingly neutral selection practices produce unequal outcomes. If it can be demonstrated that certain protected groups are more likely to have (or not have) SNSs than are others then disparate impact might result. Some statistics do suggest that Caucasians, Asians, and women are over represented on SNSs. Therefore, these individuals have a greater chance of being treated differently when SNSs are screened (Klein and Pappas 2010). Although this legal theory is largely conjecture and, to date, untested as it applies to SNSs, it remains a potential concern.

Another area of concern is when organizations use SNSs monitoring with current employees and discover employees discussing activities of the company that are arguably illegal under Federal laws including wage and hour laws, work safety laws, or labor laws. Most of these laws contain anti-retaliation provisions in which employees have the rights to object to illegal activity and exercise other rights under the specific laws. If employers are monitoring SNSs where employees discuss this type of contact then the company will have constructive knowledge of this content and must be careful not to violate employee rights under the various laws. When employees are attempting to organize a company, workers could logically be expected to use social media as an organizational tool. Monitoring social media would then give managers constructive knowledge of which individuals were union activists and allow those employees to be targeted for illegal retaliation. As an example of this threat, the National Labor Relations Board has received at least 75 unfair labor practice charges concerning discharges over employee social media content and overly broad social network poli- cies that restricted legal employee speech. Several of the cases were deemed by the NLRB to be unfair labor practices (NLRB 2012).

The Dangers in Using Applicant Profile Information in Selection

The selection process may involve perfectly legal discrimination based on characteristics from the applicant profile, but it may have some hidden costs. Selection is an imperfect science and

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all selection tools have far less than perfect reliability and validity. Where employers place heavy reliance on screening applicant SNSs and consider only candidates with certain specific information on their profiles it may result in the rejection of other excellent candidates (Grant Harpe 2009). The research on employee selection suggests that hiring managers often evaluate candidates based on answers to pet or obtuse questions, they use information that lacks relevance to the job in question, and they make decisions based on cognitive processes involving expectations and stereotypes (Heneman et al. 2003).

Success in using SNSs for selection depends on rigor in the selection process and establishing a link between the job requirements and SNS information. A profile picture or piece of information on a profile can trigger processing errors such as stereotyping (Elzweig and Peeples 2009). This type of selection error will exist until it is determined what information on SNSs is appropriate for review and how it should be interpreted. In the absence of the development of specific selection criteria, the individual rater uses internally established criteria to evaluate an individual’s profile (a process subject to a variety of cognitive processing errors and poor interrater reliability) to determine if the information is favorable or unfavorable (Smith and Kidder 2010). For example, one rater may discover that a potential employee is attractive, enjoys the same activities, and went to the same college as the rater. This would most likely give the candidate a greater chance at getting the position. If an applicant is perceived as physically good looking, they could have an advantage as initial impressions of physically attractive individuals will include assumptions of positive traits (Scott 2014). Another rater may view the same candidate’s profile and find that he or she is an atheist with six children, has posted radical political comments, and has written statements that question his or her ethics. These could be seen as potential drawbacks by the rater (Jones and Behling 2010).

Another example is using the number of “friends” individuals have as a proxy for an applicant characteristic. If there are four candidates for a competitive sales position, three of whom have 500 “friends” and one has 800 “friends,” one rater may think that the latter should be hired because having more “friends” acts as a proxy for extrover- sion, a desirable characteristic in a sales person (Smith and Kidder 2010). This interpretation, and many others like it, may have little validity, and candidates may or may not be considered for a position because of largely irrelevant information in a profile (Roberts and Roach 2009). The employer subconsciously perceives candidates as better or worse when in reality information on SNS profiles is not always accurate.

An additional issue involves the reliability of the information contained in a profile. Candidates who know that SNSs are going to be monitored can engage in impression management and deceive employers by altering information on their profiles to boost their image (Elzweig and Peeples 2009). Just as individuals fake self-report tests, they can manipulate their profiles to portray a certain image, falsi- fying their true personality, skills, morals, etc. For example, they could delete certain postings or pictures, change their interests or activities to align with the particular job they are applying for, or “hide” certain information from employers (Kluemper and Rosen 2009). Also, “friends,” through their own initiative or as willing co- conspirators may inaccurately tag an individual, post something incorrectly on his or her wall, or wildly exaggerate the truth. This false information may not be discovered right away and has the potential to be damaging and inappropriate (Smith and Kidder 2010). For these reasons, it is imperative for employers to decide how to incorporate SNSs in the interview process.

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Practical and Ethical Dimensions

One final set of concern from critics of monitoring SNSs relates to how increased monitoring will impact the evolution of social communication, how organizations could misuse content posted when applicants were in their youth, and how the differences in perspectives across generations make interpreting SNS information complex. These critics assert that SNSs are a new realm of communication that is not going away, so it is crucial that it be protected (Sydell 2010). They feel that employers need to become aware of and address the moral, ethical, and practical dilemmas with regard to SNSs and employment decisions. If employers aggressively screen and monitor SNS content, then the richness and quality of SNSs communication may suffer (Clark and Roberts 2010). These sites are communities that are built around cultural values that are at risk of being compromised (Smith and Kidder 2010). Individuals could begin to modify what they post on their SNSs and friends’ profiles to conform to the expectations of employers. This could ultimately sanitize content because applicants will conform to what they believe employers want to see. The intent of SNSs is to build relationships and bring about a sense of community, particularly for youth (Smith and Kidder 2010), but decreased honesty and increased self-censorship could become the norm of SNS users and would conflict with the mission statements of these sites (Clark and Roberts 2010).

The freedom of self-expression is crucial for teens and young adults as they develop as human beings and discover their purpose and place in life. Social networking sites have become an outlet for youth. It allows them to present their identity through pictures, hobbies, and favorite music, television shows, sports teams, etc. They have open expression through engaging in “show” versus “tell” within their online community. These individuals can differentiate themselves from their peers and feel unique. Most importantly, their SNS profiles provide self-enhancement by relating to other individuals and feeling popular (Smith and Kidder 2010). It is inevitable that teens will sometimes not think about the consequences before posting something offensive on their SNS.

It is conceivable, and perhaps even likely, that one’s adult career could be damaged because of communications made as an immature teen. Because of the nature of online SNSs, all interactions are archived and can be traced and pulled up at any time (Sydell 2010). Even deleted items may come up in other searches. The reliability and validity of using information obtained perhaps years earlier before the applicant reached maturity as an adult is questionable. Thus, many suggest that it is not in society’s best interest to access and critique an applicant’s immaturity under the assumption that everyone was once young and foolish, and most people learn from their youthful indiscretions (Scherzer 2007). It would seem irrational to forever impact a person’s ability to get a job because employers discover that the applicant said or did stupid things when he or she was sixteen, and there should be at least an informal statute of limitations when considering SNSs information. Some advocates argue that employers could be doing more harm than good when they make staffing decisions based on outdated SNS information (Clark and Roberts 2010).

Contrary to the dominant group of SNS users, Generation Yers, Baby Boomers and Generation Xers did not grow up with continuous access to information technology. Yers, in general, are far less concerned about privacy than are older individuals. The former are used to living increasingly open lives because of a youth that included daycare, baby monitors, videotaping, and the heavy popularity of reality television and YouTube. They are comfortable with posting private information in a public way (Peluchette and Karl 2009). On the other hand, Boomers and Xers are more private, independent, and less self-oriented, and they cannot comprehend the ways of these younger professionals (Smith and Kidder 2010). The

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conflicting attitudes toward information privacy pose a serious problem for both the Boomer and Generation X employers who screen SNSs of applicants and make the termination and hiring decisions of employees. In today’s corporate America, management is dominated by Baby Boomers and Xers who are mainly recruiting and hiring Yers (Smith and Kidder 2010). Inter-generational conflict is likely because these groups do not agree on the issue of privacy, and Yers engaging in normal activity with their peers via SNSs do not feel that their profiles relate to their work lives, nor do they feel it is appropriate for employers to use SNS information to make staffing decisions (Clark and Roberts 2010). Many Boomers and Xers believe monitoring SNSs and disciplining Yers because of inappropriate content that is posted online is within the appropriate scope of managerial discretion. Their disciplinary action is questionable as Yers may not understand or appreciate self-disclosure. Managers need to adapt their approaches in order to guide and fully prepare the next generation of the corporate world (Smith and Kidder 2010).

Conclusions and Suggestions for Managers

Social networking sites will continue to expand and their use will continue to evolve. Organizations will continue to be challenged to maintain a balance between their need to know and employee demands for privacy, to recognize the need for separation between work and private lives, and to be sensitive to inter-generational differences in the way in which SNSs and work life is viewed. Policies need to deal with a host of issues including Internet usage, disclosures and permissions, to what extent monitoring will occur, and how and by whom information can be used. Some recommendations follow.

Decide if Monitoring is Necessary and Develop and Communicate Guidelines

Employers must make an informed decision regarding whether SNSs profiles of current employees should be monitored. If SNSs are being used to harm individuals or to post provocative or offensive comments or pictures about the organization, most workers accept that employers are justified in disciplining current employees when such speech on SNSs is harmful to the organization. However, monitoring is often objectionable to employees who view it as intrusive and a violation of their privacy. Continuous monitoring is probably unrealistic because it is time-consuming, expensive, and of only limited effectiveness. While the threat of monitoring may provide a deterrent, monitoring itself is unlikely to prevent harm done by a malicious employee in a real-time world. While monitoring will likely reveal the inappropriate content it is usually too late to prevent the damage.

Some employers that seek to limit risk and potential for liability, out of respect for how employees view privacy, and with concern about how important work outcomes such as work satisfaction, organizational commitment, or employee engagement may be impacted by negative employee perceptions of monitoring, may opt to establish formal policies regarding content rather than attempt to monitor. Policies on content address employee concern over the subjectivity of what type of content is considered harmful, inappropriate, or offensive, crude, and serve to define the line separating work life from private life.

Whether employers engage in active SNSs monitoring or rely on usage policies alone, inappropriate employee online conduct should be explicitly incorporated into the organiza- tion’s discipline procedures. This implies, first, that employees need to know what type of cyber behavior is expected of them. In addition to developing reasonable guidelines, companies need to establish procedures to formally communicate them to all employees. The process should

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provide a justification for the restrictions and offer detailed examples of acceptable and inappropriate content and employee behavior. Employers need to convey that they have a right to protect their companies’ public image, including the Internet. A well-constructed and communicated policy can shape the employee’s acceptance (Johnson and Murphy 2011).

Anti-harassment policies in particular should include language specific to online and social media harassment. These policies as part of a broader anti-harassment policy should describe the types of online communications that are improper and inappropriate using specific examples of prohibited conduct, and policy must identify specific actions to follow and appropriate and alternative channels for reporting online harassment.

Companies must, however, avoid overly broad policies that restrict speech beyond that allowed by workplace regulations. If the employer monitors SNSs, communications with employees should describe the extent of monitoring that would be expected and the nature of any investigation that might result. Organizations need to consistently document and disclose searches in order to provide a direct rationale for a termination decision (Genova 2009), and communications should clearly lay out disciplinary procedures including what the consequences for violating policies might be and any appeals process that might be applicable. One specific concern with monitoring involves situations in union environments or during union organizing attempts. If employees are discussing union and organizational issues via social media this form of speech is protected and monitoring may constitute illegal surveillance under federal labor law.

Develop a Formal Internet Usage Policy

Every company, whether they embrace SNSs or not, needs to have a clear and distinct Internet usage policy in place. Employers must determine how much Internet access employees have when they are at work or when using a company computer. Explicit policies allow an employee to know what is expected of him or her and they provide a mutual understanding with the employer. Social network use should be included in the usage guidelines and should cover whether employees are allowed to access their SNSs, whether SNSs have the potential to be reviewed and monitored, and if the employer may scan and track the data on the sites. Implementing this type of policy will decrease issues with regard to current employees’ SNSs (Blank 2010).

Decide if SNSs will be Utilized in Selection

This paper has outlined several areas of concern regarding the use of SNSs in employee selection. Although a number of legal professionals have advanced stern warnings about potential liability for SNSs screening, there appears to be little justification for major concern as long as reasonable care is taken. Nevertheless, employers need to weigh the risks and benefits associated with both sides of the SNS controversy (Greenwald 2008). If the perceived benefits outweigh the risks, employers should not fear using SNSs in the staffing process, but should do so systematically and purposefully (Elzweig and Peeples 2009). Just as employers should be cautious in the conduct of a job interview, or in the development of a written selection test, they need to exercise care in the way they screen and use candidates’ SNSs profile information (Kluemper and Rosen 2009).

In the meantime, employers hesitant to use some SNSs due to legal and privacy concerns may select other online sites that are not social in nature, but are professionally-oriented, such as Linkedln (Klein and Pappas 2010). These types of sites are job-related and contain minimal personal information. This is an alternative for employers since candidates voluntarily upload

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their information and agree to website terms and conditions in which using information is completely legal and actually encouraged (Grant Harpe 2009).

Establish the Screening Process

If an organization intends to screen SNSs, it should inform candidates via job postings and applications that SNS profiles have the potential to be checked (Elzweig and Peeples 2009). This protects employers from candidates who claim they did not know their profiles could be viewed and used in the hiring process. If a company decides to use SNSs screening as part of a selection process, an initial decision is whether to do the screening in-house or use an external agency. To minimize risk, where in-house screening is used the organization should require applicants to sign a disclaimer on the job application giving the company permission to conduct background investigations using multiple sources including social media. If an external agency is to be used, the applicant should be asked to give permission by signing a stand-alone disclosure form.

The process of screening SNSs should be standardized by delegating the task to only a few individuals. These individuals should have training on how to screen and gather information via SNSs. Also, they must adhere to treating all applicants the same (Grant Harpe 2009). Perhaps the most justified employer concern regarding the use of SNSs in screening is the possibility of being accused of disparate treatment of applicants based on social network content (Elzweig and Peeples 2009). To make sure legal issues do not arise, a policy that details the purpose of checking and monitoring SNSs is essential (Greenwald 2008). The policy must be clear and distinct and become common knowledge among all managers and subordinates (Genova 2009). It should specify what constitutes appropriate and inappropriate use of SNS information, ensuring that there is a clear purpose when using the information, and how it will play a role in the termination and hiring processes (Klein and Pappas 2010). Organizations’ policies should clearly state that they do not base decisions on demographics (Greenwald 2008). The information gathered should be strictly job-related and relevant to the position, company, or industry (Clark and Roberts 2010). Organizations might consider using a firewall between data collector and decision maker (much like organizations do to collect EEO data) to be certain that those making staffing decisions never see inappropriate informa- tion. The specific individuals who are in charge of screening might assess the integrity of the information due to the high chances of inaccuracy and/or poor quality, eliminate information that might be outdated, not job-related, and/or might involve disclosing protected group status, and forward only relevant information to the hiring manager in summary form. If an individual has his or her profile set to “private,” and it is not publicly available, an employer should not seek a friend request.

Defend the Job-Relatedness of SNSs Information

The most imperative principle for organizations in the selection process is to have a legitimate business rationale behind any termination or hiring decision, including that based on SNS information (Greenwald 2008). Because organizations face the potential of litigation for hiring decisions that eliminate protected group members, any decision should be able to be justified in court (Clark and Roberts 2010). This means that companies should be able to demonstrate that job analysis information has been used to generate accurate job descriptions, and that from the job descriptions the company has been able to infer a body of knowledge, a skill set, or other important personal attributes or characteristics that are required for the job, and that can be inferred through social network content. This process of validating selection criteria is well

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known (see Heneman et al. 2003), and is at the heart of establishing a business justification for rejecting applicants.

The legal environment surrounding the use of SNSs continues to evolve and the research on their effectiveness as a business tool is in its infancy. In is reasonable to suggest that the growth in the number of organizations and hiring managers using SNSs in staffing lends some measure of credibility to their effectiveness. It is safe to say that organizations should have a legitimate reason for seeking information on SNSs (Clark and Roberts 2010), but organiza- tions should not be reluctant to use SNS features for business purposes so long as their use is business-related and their policies for using them are reasonable and carefully followed (Smith and Kidder 2010). We can be sure that the coming years will continue to define the legal terrain surrounding SNS use, and that research will provide a basis for what they can and cannot tell us about job applicants.

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