I have been teaching for the American Management Association (AMA) for 27 years. One of my key courses is Employment Law along with Negotiation. On the surface, one might think of employment law as boring, but in actuality employment law is exciting and dynamic. I do my best to bring this dynamism to the teaching of this course.
Negotiation plays a major role in all aspects of employment laws. One finds negotiation in creating employment laws, regulations, hiring practices, conflicts, and departures.
For example, during the last teaching of this course, we had an animated discussion about employers mandating COVID-19 vaccinations. The overall conclusion was “yes,” with certain exceptions. Most folks had forgotten that public schools have been requiring up to 12 rounds of vaccinations before entering. These vaccinations even included mumps and measles, let alone polio and diphtheria.
Of course, there are vaccination exceptions, such as health conditions or religious concerns.
I used skill practices, role plays, pictures, court cases, examples, and quizzes to make the course exciting.
This blog entry will focus on several questions that highlight social media and employment hiring. Some of these questions are playful and yet add insight to the dynamism of employment law.
Question #1: What percentage of hiring managers review a candidate’s social profile before making a hiring decision?
Response: Most participants guessed correctly; that is, that most employers (70% according to Career Builders) declared that they do check social media especially Facebook. Some even check YouTube, Instagram, TikTok, Pinterest.
Most of us agreed that Linkedin may be more of a professional site rather than social.
My advice: I advise employers and human resource leaders not to check social media. First, my value system separates the work life from the personal life. This is one of the reasons I object to some professionals such as police stating that they are 24/7. No. I want to know what hours a police officer is at work and what hours they have their personal time. 24/7 on call is a bad idea.
I remember long ago when my hometown, Springfield, had its first female officer who was then let go because she danced at a strip bar. Even then I considered that to be her personal life. (I know some people contend that this brings up the morals clause in the employment contract, but I will leave that issue for another blog entry.)
Second, I advise against checking social media because often it is a backdoor method to violate employment laws and fair hiring. One might learn that a person has an Iranian background or is a Muslim, so subconsciously the employer decides against hiring.
Example: During one recent training of an international firm, I asked the participants who were mostly HR or managers who hire if they checked social media during the hiring process. They overwhelming declared, "yes." I followed up by asking them, for what are they looking?They were dumbfounded and quiet. After several minutes of awkward silence, one participant asserted that they were looking for pictures like a swastika because surely they would not want to hire someone who advocated this sort of ideology.
I knew, and in their hearts the participants knew, that this was spur of the moment creative thinking. They were in reality not looking for swastikas.
Instead, they really did not know for what they were looking. In reality, it was a wild goose chase.
So, yes, I advise against employers checking social media in the hiring process except possibly, Linkedin.
SHRM (Society for Human Resource Management) Is a Vital Resource
“When it comes to screening job applicants, it appears that fewer employers are using social media than in the past. In the 2013 SHRM survey, 22 percent of respondents said they use social media websites like Facebook or Instagram to research job candidates, a decline from 34 percent in 2008.”
Despite Warning, Being Realistic About Social Media
Despite my advice to employers not to check social media during the hiring process, it is clear that most employers find it irresistible. This means that during the job search, one needs to re-examine their social media. Maybe it is a good idea to have a trusted friend also do the same.
Shay just got her Master's degree and was seeking a job concomitant with this degree. Shay was often in the top two job finalists, but never actually got the job offer. What was wrong? Shay’s brother asked her about social media and did his own examination. What the brother found did not involve any pictures or actions of Shay’s, but instead Shay’s family members. Some of them on Shay’s Facebook page described their “hearty partying” and the results of overdrinking.
Shay contended that only her loved Facebook users could view these pictures. The brother then asked a stranger to view Shay’s Facebook. This stranger was able to see the same risqué pictures.
Shay shut down her Facebook account during the job search. Within a few months, Shay was offered a job that required a Master's.
In another case, Lee was seeking a job. On Lee’s Facebook page, the cover picture was of Lee and college “Buds” drinking “bruskies.” During Lee’s job search, Lee changed his cover picture to a graduation picture. Lee soon secured a job that was wanted.
Question #2: What percentage of employers admit that they have not chosen a candidate because of social media examination?
Response: Most participants guess higher than what the Career Builder surveys show which equal 54%:
“Even more striking is the follow-on statistic: 54 percent of employers surveyed said they chose not to hire a candidate based on content found on their social media profile(s).
Of those hiring managers who chose not to hire someone due to their social media presence, the top reasons given for why were that candidates had:
1. Posted provocative or inappropriate photos, videos or information (39 percent) 2. Posted information about drinking or using drugs (38 percent) 3. Made discriminatory comments related to race, gender, religion (32 percent) 4. Bad-mouthed previous company or fellow employee (30 percent) 5. Lied about qualifications (27 percent) 6. Had poor communication skills: 27 percent
7. Been linked to criminal behavior: 26 percent
8. Shared confidential information from previous employers: 23 percent 9. Had an unprofessional screen name: 22 percent
10. Lied about an absence: 17 percent.”
Question #3: What percentage of employers stated that social media examination influenced them to offer a job?
Response: Most participants either could not guess or guessed lower than what surveys reveal.
“Fortunately, when it comes to hiring practices and social media, the opposite effect is also true: 44 percent of hiring managers and employers have discovered content on a candidate's social media profile that caused them to actually hire the person.
The main reasons for this, according to the employers surveyed:
1. Candidate's background information supported their professional qualifications (38 percent) 2. Candidate demonstrated great communication skills (37 percent) 3. Candidate showed a professional image (36 percent) 4. Candidate showed creativity (35 percent)”
Question #4: What percentage of employers admitted that they were suspicious if a potential employee did not have a social presence?
Response: Like the question above most participants could not guess or they guessed at a lower rate than 54%.
“It's also not a good idea to just get rid of your social media profiles altogether. Employers didn't like candidates who lacked a social media presence--57 percent of employers said they were far less likely to call someone in if that person was an online 'ghost.'
If you can't be found online, you're seen as shady. So it's not about deleting unflattering profiles; it's about cleaning up your feed.”
Question #5: What jurisdictions prohibit potential employers from checking social media?
Response: This was an interesting one since most participants did not know the law in their own jurisdiction.
“The law has not necessarily caught up to all of the latest trends in technology. Around half of the states have enacted laws to stop employers from asking for password and username information from prospective employees or otherwise accessing portions of a prospective employee's social media accounts. For example, California law prohibits employers from asking for the social media passwords of their current or prospective employees. “
Approximately 18 states have passed some sort of anti-snooping or social media privacy laws. This list includes,
-2012: Illinois, Michigan, Missouri and California
-2013: New Jersey, Washington, Oregon, Nevada, Utah, Colorado, New Mexico, Arkansas
-2014: Tennessee, Louisiana, New Hampshire and Wisconsin.
There are 28 states with pending bills or bills that have been introduced.
In all 50 states, asking for an applicant’s (or employee’s) password creates a real risk of violating the federal Stored Communications Act.
The Stored Communications Act is a law that addresses voluntary and compelled disclosure of "stored wire and electronic communications and transactional records" held by third-party internet service providers. It was enacted as Title II of the Electronic Communications Privacy Act of 1986.
There is much advice warning employers against using social media in the hiring process. They may be reading a comment out of context. They may not know the whole history of the conversation. They may jump to conclusions. Nonetheless, many employers do so. Those seeking jobs should be realistic. They should re-examine and clean up their social media so it presents a positive view of the job seeker.
American Management Association
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