Hidden dangers of checking out employees or candidates on Facebook

Social media provides insight into a person’s life, or at least what that person wants others to see of their life. Hopping on Facebook (or Instagram or Twitter) to browse an employee or potential employee’s posted content is tempting. However, the ease of obtaining personal information with just a few clicks brings with it potential dangers for employers in Wisconsin, as well.

Is looking up a job candidate, or employee, online illegal?

No, not per se. It is the information obtained and how it’s used that matters. The Wisconsin Fair Employment Act (“WFEA”) governs the following actions in/aspects of employment: hiring, licensing, job assignment, promotion, compensation, benefits, layoff or termination, and harassment. The WFEA prohibits discrimination throughout any of the aforementioned aspects. So, you could learn information while perusing an employee or potential employee’s social media content, and then use that information when making an employment decision.

I previously wrote about a similar conundrum in checking out an employee or candidate’s criminal record on CCAP (Use CCAP for background checking? You might want to think twice …). When checking out a candidate on CCAP, information learned that might cause an employer to discriminate relates to the protection against discrimination based on arrest and conviction records under the WFEA. The analysis here is similar. One WFEA protection that often comes into play in regard to learning information about an employee or potential employee through social media is the protection against discrimination for the “use or nonuse of lawful products.”

Use or nonuse of unlawful products

What does that mean? Use or nonuse of unlawful products means actually just what it states — that an employer cannot discriminate against an employee for choosing to use a particular product, or for not using that product. As a practical matter, the common targets are tobacco and alcohol use.

Now, of course, if your company policy is to prohibit the use of these products on the premises and/or during working hours, that is legitimate. It is the use (or nonuse, but for the purposes of this article we focus on use) of lawful products off the employer’s premises and during nonworking hours that are protected by the WFEA.

As with most laws, there are some exceptions. An employer taking the use (or nonuse) of a lawful product into account in employment decisions may not be discrimination if:

  • The use impairs the ability to undertake adequately the job-related responsibilities.
    • For example, courts have found that smoking tobacco can legitimately be a bar to obtaining employment as a firefighter.
  • Creates a conflict of interest or an appearance of a conflict of interest with the job-related responsibilities or conflicts with a bona fide occupational qualification that is reasonably related to the job-related responsibilities.
    • This can be the case with jobs that require certain types of licensing or bonding.
  • Conflicts with any federal or state statute, rule, or regulation, including the use of tobacco or nicotine products by minors, and the use of alcohol by those under 21.
  • Where the employer is a nonprofit organization, if an applicant or an employee uses/does not use off the employer’s premises during nonworking hours a lawful product that the nonprofit corporation discourages/encourages the general public from using, the nonprofit corporation does not violate the law by taking an employment action or licensing action against that applicant or employee.
    • For example, an organization focused on heart health that publicly discourages the use of tobacco products may take an employee or candidate’s use of tobacco products into account in making employment-related decisions.

Does looking at social media really give an employer that much information? Let’s try it out. I spent about 60 seconds on my Facebook newsfeed and saw photos that told me the following products were being used by my Facebook friends: Actress Kate Hudson’s line of athletic clothing, baby formula, ice cream, beer, Starbucks, weights, and a casino. It could mean any number of things — you may find, if you really stop to think, that you judge, even if for only a second, those whose social media posts depict something with which you don’t agree, like a subscription to the New York Times, hunting, buying only organic food … the list could go on and on. You get the idea.

(Continued)

 

Where we may be likely to see problems are the snap judgments that come from seeing photos or video of a person who is clearly intoxicated. This may cause an employer to question the individual’s sense of responsibility or worry that they are likely to come to work hungover, or even drunk. This kind of thinking is a leap that puts an employer at risk for discriminating. Just an assumption that drinking may impair a person the next day is not enough to use that person’s use of alcohol in making a decision about that person’s employment. If, on the other hand, a person does come to work with alcohol still in his system or his performance is impaired due the night-before drinking, that’s a different story. As a practical matter, think about how you would prove this. Is it worth the risk or the battle that may ensue?

Just as with CCAP, when using social media to check on someone, some questions you might want to ask yourself are: What information am I seeking out? What information might impact my decision about this person one way or another? Will I be able to ignore something I might see or read? Depending on your answers to these questions, you may wish to consider whether checking social media should be on or off your pre-hire checklist. In checking social media of current employees, additional legal issues come into play beyond just the risk of discrimination for the use or nonuse of lawful products; those potential issues are beyond the scope of this blog post.

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