There has been a recent wave of headlines referencing incidents in which employees have been fired as a result of their online conduct, usually on Facebook or personal blogs. Human resources professionals seem to be struggling to deal with this relatively new issue effectively, and are often at a loss as to how to monitor and respond to employee online behaviour. What is often ignored, however, is how companies, and HR persons in particular, can use social media to their advantage.
First, there has been some debate as to the use of social media in the context of hiring. In my view, it would be irresponsible not to access such a wealth of information when a person or department is tasked with hiring the right individual. While some applicants may not have much of a footprint online, potential employers should check. That said, if information about an applicant can be found online, it must be used responsibly. First, I urge our clients to take anything they find online with a grain of salt. By way of example, I often point out that previous generations engaged in similar forms of conduct when they were young; the difference is largely that in those days, no one had a cellphone with a camera built in to snap a photo of their friend dancing on a table and then post it on Facebook before they even left the bar. While applicants would be wise to ensure that there are no such photos (or other inappropriate postings) online, those who are reviewing the applications should also adopt a realistic approach when they stumble upon those incriminating pictures.
Furthermore, human resources professionals are well aware of the human rights concerns that arise in the course of the hiring process. The best advice for some time has been that those in charge of hiring should not obtain any more information than they reasonably need in order to make the hiring decision. They should not ask questions that might elicit information about protected grounds, as they want to avoid any inference that their decision was based upon such information. Similarly, while online sources can contain a wealth of information, much of it will be irrelevant, and some of it may be inappropriate. I often advise our clients to ensure that the person that is making the hiring decision is not the person who performs the online search. That way, the person researching the applicant online can filter out any irrelevant or inappropriate information, and prepare a summary of relevant material that they can deliver to the decision-maker. If this is done properly, the company can credibly show that they were not privy to inappropriate information, and that any decision not to hire was not based upon a protected ground.
I also encourage organizations to use social media in order to monitor the behaviour and conduct of their current employees. I have seen organizations learn that their prized employees were actively competing against them by reviewing their Facebook ads. I have also had clients find out that employees on sick leave were actually off on a weekend in Las Vegas. And, of course, there is no shortage of examples of employees badmouthing their company, their boss or their colleagues online. All of this can, and should, result in disciplinary action. If the organizations were not monitoring online activity, they may never have been aware of their employee’s misconduct.
Finally, social media can also be useful in the post-dismissal phase of the relationship. An employer’s obligations in the event of dismissal can be dramatically reduced if the employee obtains new employment fairly quickly, or if they are not making any efforts to find a new job. Keeping an eye on a former employee’s LinkedIn account can often be a good way to learn of their mitigation efforts, as well as their new position. Similarly, online resources can be used to demonstrate the existence of suitable positions for the former employee. It can often be strategic to identify such positions and forward them to the individual or their lawyer.
While social media will undoubtedly continue to evolve over time, it is not going to go away. Organizations and human resources departments must accept that and adopt a positive approach to it. Rather than struggling to “deal with” social media, as I often hear people say, they should find a way to use it to their advantage. As discussed above, this can be done at all stages of the employment relationship. Employers should not ignore relevant information, and social media is now a primary source thereof.
I would be interested in hearing about other people’s experience in using social media to their advantage in this context.
Miller Thomson LLP
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