by Paul Kiser
A recent study indicated that 70% of employers surveyed said that they use an applicant’s personal social networking page as a factor in deciding whether to hire or not. It is no secret that many employers check out their employee’s social networking sites and in some cases base employment decisions on what they find out about their workers, but is the employer increasing their liability by this practice? A manager or human resource person who goes to a social networking site and looks up an applicant’s (or an employee’s) webpage may believe they are acting in the best interest of the company; however, researching someone’s private life may result in expanding the company’s Duty to Care responsibilities, which could open a new door of accountability if the employee commits a criminal or civil offense that might have been indicated beforehand on his or her social networking page.
Duty to Care versus Big Brother
Every employer has an obligation to abide by the doctrine of ‘Duty to Care’. While each State has its own standards to define an employer’s Duty to Care, in general terms, it is the responsibility of the employer to make a reasonable attempt to ensure that an employee would not cause harm or injury, and if an employee does cause harm or injury that the employer could not have reasonably foreseen the employee’s potential to act in such a manner. Some may think that this is limited to an employee’s actions on the job; however, under certain conditions, the employer may be liable for harm or injury caused by acts performed while off-duty. Because of the Duty to Care responsibility many employers perform criminal background checks, credit checks, and drug testing on their employees to insure that they have made a reasonable effort to maintain a safe environment for their customers, employees, and the general public. Monitoring an employee’s Facebook, MySpace, LinkedIn, or other social networking page might seem a natural extension of the Duty to Care obligation, but is it a good policy or does it expand the Duty to Care to an unlimited monitoring and assessment of an employee’s potential to cause harm?
A Fictional Example
An employer (Better Widgits, Inc.) checks an applicant’s (Mark’s) current Facebook page and sees nothing unusual and based on the qualifications of the applicant and seeing nothing negative in the criminal background checks, Mark is hired. Eight months after being hired Mark is fired for poor work performance. Two months later Mark returns to Better Widgits, Inc. and shoots two people. Attorney’s for the victims discover that six month’s prior to his employment Mark had written about his admiration of a murderer who went back to his former employer and killed three people. If the attorney’s for the victims know that Better Widgits, Inc. had a practice of checking an applicant’s Facebook page, isn’t it plausible that they will try to build a case that the employer should have reasonably known that Mark had the potential to be violent based upon his Facebook writings?
In the above example the attorneys may still attempt to make the same case even if the company forbid managers and human resource staff to review applicant and/or employee personal social networking sites. The difference is that the question of ‘reasonable’ knowledge may be limited if an employer takes the stance that they cannot be held responsible for potential acts of violence based solely on the person’s writings on a social networking page when the employer has no legal responsibility for such an intrusive examination of an applicant’s/employee’s personal life. However, by voluntarily researching Mark’s Facebook page they may be obligating the company to take action on what they find, or in this case, should have found even if it occurred six months prior to Mark’s hiring.
O Brave New World of Employment
We are still in the early phase of understanding the legal ramifications of how social networking sites will impact employment law and it may be years before standards can be developed that will define the best practices; however, each employer should understand the potential liability of monitoring personal social networking sites. There is risk even with a decision to not monitor the personal Internet writings of an applicant or employee. Case studies have shown that a violent act in the workplace is often foretold in the writings of person days, weeks, months, and even years before he or she commits a criminal act, so it will be no surprise if individual States eventually enact legislation to require employer’s to research an employee’s private life, including social networking sites. However, until it is required by law an employer should consider a policy that defines and limits the company’s responsibilities for researching an applicant’s or employee’s background. It is suggested that an employer seek the advice of their attorney before they begin monitoring applicant or employee personal social networking sites and understand the potential legal responsibility social network monitoring may create for the organization.
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NOTE: Paul Kiser is not an attorney and this blog should not be considered to be legal advice. An attorney should be consulted for all legal issues and opinions regarding proper employment practices and policies. Paul has over 10 years of Human Resource related experience in HR and management and a Bachelor of Science in Business Administration.