When it comes to recruiting potential employees, social media has become a popular resource for finding candidates that will fit the required job skills and become a top-performing employee. But is using information from social media profiles a legal and reliable part of the recruiting process?
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Not only have gender-related leadership conversations emerged lately in the media, the attraction, retention, and development of talented women has become an important issue for many employers in recent years. Organizations are increasingly recognizing the need to develop and support more female leaders in their workplace.
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Increasingly, Facebook and other social media postings are entering the courtroom as employers use them as evidence for taking adverse action against employees. Here are two cases regarding Facebook and the Family Medical Leave Act (FMLA) which serve as models for employers on this issue and offer six (6) important lessons.
In Lineberry v. Detroit Medical Center, a federal district court ruled that an employer is entitled to fire an employee if they have an "honest belief" that he or she is abusing FMLA leave.
In the case, Carol Lineberry was employed by Detroit Medical Center as a Registered Nurse. She injured herself on-the-job when moving stretchers, was treated by her physician, and was told not to return to work. As a result, Lineberry received approved FMLA leave from her employer.
While on leave, Lineberry took a vacation to Mexico. The trip was approved by her physician who stated that the vacation would not conflict with her recovery nor would be as physically demanding as performing her job duties. During her vacation, however, Lineberry posted photos on Facebook suggesting that she misrepresented her need for FMLA. Her coworkers saw these postings and complained to Lineberry's supervisor.
When questioned, Lineberry informed her supervisor that she used a wheelchair during her travel, however during a subsequent disciplinary meeting, when reminded that airports have cameras, admitted to lying about using a wheelchair. As a result, Detroit Medical Center terminated Lineberry for dishonesty and falsifying information. Lineberry sued the hospital, alleging that it interfered with her FMLA rights and retaliated against her.
The court considered Lineberry's Facebook postings and dishonesty about the use of a wheelchair as facts which led Detroit Medical Center to reasonably believe that she had misused FMLA leave.
A similar case, Jaszczyszyn v. Advantage Health Physician Network, involved Sara Jaszczyszyn, a customer service representative employed at Advantage Health Physician Network. Sara requested and obtained the appropriate medical certification for intermittent FMLA leave as a result of a car accident.
After receiving certification, Sara was absent for a continuous and open-ended length of time. While on FMLA leave, Sara posted pictures of herself at a festival, socializing and enjoying time with friends. Her coworkers viewed these pictures and complained to their boss. Sara was eventually terminated and filed a retaliation claim against Advantage Health Physician Network.
Sara's claim was dismissed by court, primarily because the organization was able to show that it had an honest belief that she was engaging in fraud and relied on facts in its decision to terminate her. Also, the organization conducted a complete and thorough investigation of the issue and inquired about the discrepancy between her claim and Facebook photos.
These two cases have some important implications for employers in terms of managing social media postings and FMLA leave, specifically:
There will undoubtedly be much more case law to glean insights from as Facebook and other social media postings make their way into the courtroom. As these cases unfold, employers should use them as models and lessons for how to manage FMLA and other employment laws.
Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.
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Despite a strong focus over the years on the types of policies and restrictions being placed on employee’s social media use in the workplace, an equally important story regarding the growing use of social media among employer’s for business related purposes is also emerging.
Read this article...In 2012 Facebook, in cooperation with the U.S. Department of Labor and several other organizations announced the Social Jobs Partnership, a new social media-based job search tool. The Social Jobs Partnership app is a centralized database of job opportunities pulled from a number of outside job boards. At the time of launch, there were about 1.7 million jobs hosted through the app.
Read this article...The 2012 controversy about employers screening job candidates by asking for their Facebook passwords has many employers wondering: should social media and online information be used in the hiring process and to what extent?
Most recruiting experts agree that social media can be used to effectively source and identify great talent. In fact, there is a good bit of evidence which shows that social media is a successful sourcing strategy for finding talent, especially passive candidates. Social media is quickly replacing other traditional recruitment methods such as postings and advertisements.
The main issue with social media is not in using it to find and source talent when recruiting, but rather when social media platforms like Facebook and other online information are used to assess and evaluate job candidates. While the goal should always be to eliminate the risk of a bad hire and hire a top performer, here are a few important reasons why using social media and other online information to evaluate job candidates poses problems.
There is not enough conclusive and research-based evidence that supports social media as a predictor of future job performance and fit or as an effective hiring method. Though a 2012 study published in the Journal of Applied Social Psychology found a strong correlation between ratings of Facebook profiles and actual performance ratings of employees, this research must be replicated in order to make a stronger case for social media usage in the hiring and selection process.
All hiring assessments and evaluation techniques should be valid and reliable and social media has yet to be tested against the reliability and validity standards that other hiring methods have endured, such as validated ability and personality assessments, structured or behavioral interviews, and work samples. As a result, it's unclear as to whether social media is a sound hiring practice.
Use of social media for selection also poses legal concerns because social networking sites contain so much information that employers are prohibited from using to make employment decisions. For example, social media can expose an individual's race, gender, age, and national origin through pictures, postings, and biographical information. These characteristics are protected from discrimination under law.
Additionally, the courts have yet to clarify their stance on the usage of social media for selection. Until more case law offers guidance on the issue, it will be unclear as to whether social media is an appropriate and legal selection practice.
A final issue with using social media in the hiring and selection process is that it may not provide the necessary information to evaluate candidates objectively and consistently. Social media often contains a great deal of personal and irrelevant information that causes employers to make judgments about individuals, but not necessarily based on actual hiring criteria (skills, qualifications, experiences, culture fit, etc.).
For example, a posting on Facebook by a job candidate has little relevance to whether an employee can actually do the requirements of the job. Employers can use this information to screen out hires even when it is not job-related. When employers make decisions about candidates based on criteria that is not job-related or based on job requirements, they are making biased selection decisions.
Also note that the three most common reasons new-hires fail are poor culture or personality fit, poor job fit or an inability to do the work, and lack of interest or motivation to do the job. Social media tells employers very little about candidates in these areas.
In conclusion, your organization should think twice before "googling" your next job candidate or asking them for their Facebook password to browse their profile. Not only do these practices expose your organization to legal risks, but they may ultimately not be effective in helping you select great talent. Our advice: stick to tried and true selection practices to maximize your probability of acquiring a great hire.
Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.
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According to the results of the 2011-2012 ERC Policies & Benefits Survey, more than a third of local employers allow at least some groups of employees to access social media sites such as Facebook or LinkedIn during regular work hours.
These results may suggest that many employers still don’t have their arms around the impact of social media in the workplace. With the potential risks of liability and the negative impact these sites can have on workplace productivity, it may surprise some to see that so many employers allow employees to access these sites during the workday.
However, the question did not refer specifically to employees accessing the sites on an employer’s network, meaning that employees may be able to access the sites via their own personal mobile phones and devices as well, which could explain why the percentages could appear higher than some might expect.
Visit our ERC Survey Page to access more information on our conducted surveys.