A local attorney recommends employers resist searching through the social media accounts of employees for fear of finding content that reveals a protected class status. Photo by Adem AY on unsplash.com

In the current Information Age, the public image of a company can make or break it.

In guarding the public’s perception of their businesses, employers might be ready to install policies for their employees’ social media activity in and out of the workplace, but California does have laws in force that employers should be aware of.

According to a survey from The Harris Poll commissioned by staffing service provider Express Employment Professionals, 88% of U.S. hiring managers say they would consider firing employees for content found in workers’ social media posts.

 U.S. hiring decision makers say fireable content in employee’s social media posts includes content that is damaging to the company’s reputation, reveals confidential company information, showcase or mention illegal drug use, violates the company’s social media policy, and showcases or mention’s underage drinking.

One in four employers discourage the use of social media during work hours, with 30% providing resources and information on professional social media etiquette.

Rae Pardini Matson, founder of public relations firm RPM PR in Fresno, said that employers going through the interview and hiring process that are interested in hiring a candidate are likely to do a search on their social media presence.

She noted that it’s something that employers need to think about for themselves as well.

“Especially in today’s hostile social media climate, it’s important for you as the leader of your company to know that you’re always on the record, the camera is always rolling, and while media features definitely build your credibility and reputation, your actions outside of the office are just as critical as those in the boardroom,” Matson said.

Joe Denham, CEO of local office staffing and recruiting agency Denham Resources in Fresno, stresses that candidates should never post anything on the internet that they wouldn’t want others to see.

“You have to treat the internet like the old front page of a newspaper,” Denham said. “Anything you put up anywhere on the internet can end up being very public.”

If a company’s employees do need to use social media for work, Denham advises employers have separate accounts that they own for their workers.

Though there are laws in California that prohibit what exactly an employer can search for on the internet, Denham said he has still heard of companies searching candidate’s social media presence.

In 2013, California enacted legislation AB 1844, which protects residents from unwarranted invasions of their social media accounts. The law prohibits employers from requesting social media usernames and passwords of job applicants and employees to gain access to their personal social media websites.

The law does permit an employer to request that an employee provide personal social information regarding a workplace investigation, employee misconduct, or a violation of the law.

It does not apply to information or passwords that are used on employer-issued electronic devices.

Should an employer be anxious to do a social media search for a potential employee, they would be advised not to.

Ian Wieland, attorney and partner at Sagaser, Watkins, & Wieland PC in Fresno, recommends employers not do a social media search for an applicant at all — or even after a candidate is hired.

“The problem with social media from the employer’s standpoint, there is a lot of information that they would otherwise not know,” Wieland said. “For example, an employee might disclose their sexual orientation, or their religion, things of that nature that are protected categories.”

When an employer is going through the hiring process, things like sexual orientation or their religious affiliation aren’t known to employers. Doing a social media search for a candidate could support a plaintiff’s claim that the employer discriminated based on protected categories.

“We highly recommend employers do not use social media background checks for job applicants and pre-employment inquiries,” Wieland said.

Wieland notes that employees have free speech rights and protections under the National Labor Relations Act, which protects the rights of employees to address conditions at work, with or without a union. This protection extends to certain work-related conversations on social media platforms like Facebook and Twitter.

Most employer’s social media policies center on employees not using social media during company time or on company devices, Wieland said.

Some employers do have social media policies that remind workers that they are the face of the company, and if they post something while representing themselves as employees of the company, there could be ramifications.

Wieland has worked on cases where racist comments posted by employees came to the attention of their employers, leading to termination.

He has also worked on cases where employees take time off work for medical reasons, but then post themselves engaging in vacation activities or performing in athletic competitions, which were then brought to the attention of employers by fellow employees.

Different companies have different standards, but generally, racist speech and hateful speech is not protected, and can be the basis for employee termination.

“It’s something that would not be acceptable in the workplace,” Wieland said. “The unfortunate reality is that social media posts are permanent. Its out there. It’s in writing. Its evidence that is going to be used and preserved.”

Political comments, even ones that an employer might not agree with, are usually not used to fire workers, but employers might have conversations with employees that serve as the face of the company to tone down their political posts.

In cases where an employer is facing a lawsuit from a former employee, Wieland said that law firms do investigate the social media presence of the former employees to find evidence to help defend the case.

Though Wieland advises against employers doing social media searches for candidates and employees, if they do find themselves in litigation, an employee’s social media presence is fair game.