Trouble over Social Media Posts? Privacy Matters | DCR Workforce Blog

Trouble over Social Media Posts? Privacy Matters

social media privacySocial media participation has complicated the lives of many; making it a fitting example of technology being a boon and a bane!  It is estimated that more than 80% of all recruiters use social media sites to find candidates.  In fact, social media is so pervasive that the absence of a profile on LinkedIn or Facebook causes prospective employers to question whether there may be issues that should cause a candidate to be disqualified.  While an online profile has become a necessity, it is important to understand the ramifications of posting your information on a public forum, and using the privacy settings effectively to ensure that your information is protected and that you project the right public image.

Fired (or Not Hired) over Social Media Participation?

What an employer considers to be inappropriate behavior and communication could get you fired, or not hired, even though the actions and decisions of the employer could be discriminatory. Obtaining information regarding the applicant’s age, race, religion, national origin, pregnancy status, marital status, disability, gender identity, sexual orientation and genetic information is unlawful when making an employment or promotion decision. It is possible to deduce this information through a person’s social media a postings, requiring companies to exercise caution in using social media as a means of learning more about candidates or employees.  Of course, proving that a potential or existing employer discriminated based on information gleaned through social media is a lengthy and difficult process.

  1. In a case filed against Jet Propulsion Laboratory (JPL) in 2011, its ex-employee David Coppedge alleged that he faced unfair religious discrimination when he was demoted (and subsequently terminated) due to information available online with regard to his religious beliefs regarding the creation vs. evolution of mankind. JPL claimed it was natural attrition and Coppedge was not laid off for any other reason. Coppedge was unable to substantiate his claim when the employer was able to prove that Coppedge was informed of an impending downsizing of his team and disregarded all advice to undergo training to get additional skills.
  2. In Martin Gaskell vs. University of Kentucky, the plaintiff also questioned the Bible’s theory of evolution – which he considered as having major flaws and openly supported ‘intelligent design’ theory.  The university’s search committee member had clearly mentioned in a note that he would not be considered for the proposed job of Director for its observatory on account of his religious beliefs. When Gaskell sued, the university settled out of court.
  3. In the case of Neiman v. Grange Mutual Casualty Co., the plaintiff contended that the fact that he posted his graduation year as 1989 on his LinkedIn profile allowed the potential employer  to know that he must be older than 40 in the year 2010. This was enough for the court to send the matter to trial on grounds of age discrimination.
  4. The communications director of a New York business lost her job over an offensive and racist Tweet, right before taking an 11 hour flight on a Friday. It went viral before she landed and offended so many people that her employer let her go on Saturday for her ‘hateful statements’.
  5. Their healthy and energetic Facebook photos and activities gave away most of the retired New York City police officers and firefighters who would show up for their psychiatric exams looking disheveled and disoriented. Authorities investigated fraudulent claims for disability had cost the Social Security system nearly $400 million.

Privacy Matters

These days, any publicly available information can play a role in the hiring, promotion and termination process.  Employers are not prohibited from doing online checks, although there are restrictions as to when they may check and what they may check for.   After interviewing individuals for a job or considering workers for a promotion, employers frequently look at online profiles. Those that raise a red flag – like drugs, drinking, badmouthing old employers, and submitting fake qualifications, will usually result in rejection.

We have all been told that anything posted online stays there forever.  While most employers will factor time passed into their decisions, some may be concerned that the individual will “return to old ways”.  In nearly every case, the individuals will never be told that they didn’t get the job/promotion because of information found online. Let us look at some types of social media participation which should be avoided:

  • Tweeting Selfies Out? Think again: Making one’s photographs public leaves the door open to their inappropriate use and public humiliation. All those who love tweeting out selfies by the second, do exercise caution.
  • Deliver Your Message in the Right Way: When a young girl sent a LinkedIn connection request to the CEO of a job bank, the reply was a brutal set down. When posted online it won the CEO strong disfavor from many.
  • Maintain Confidentiality: A father lost an $80000 legal settlement in an age-discrimination suit, when his daughter’s post took it public through her Facebook account; breaking the confidentiality agreement signed by the father. Businesses and workers need to be cautious about revealing confidential information online.
  • Fame vs. Notoriety: Avoid gaining publicity for all the wrong reasons or losing your job over a tweet. You do not want anyone to be wondering ‘what you were thinking’ or if you were ‘thinking at all!’
  • Big Brother is Watching: Sharing your likes and dislikes on public forums, with co-workers could help forge strong workplace bonds but there is a fine line between sharing information about work conditions that pertain to a group of workers (protected by federal law) and merely griping about your situation (not protected). .

Shakespeare always knew how to express anything best and we must follow what Falstaff says: “The better part of valor is discretion; in the which better part I have saved my life.” Make sure that you have understood the privacy settings on each of the forums you participate in because privacy is important. It matters! Ideally, ignoring all privacy settings and assuming that everything you post online can be seen by everybody when posting content, seems to be a highly desirable and safe option.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.