How “Would you hire a private investigator to go

How Companies Forge A
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After hours, beer and bikinis may represent
carefree fun; but in the realm of employment, the two “b” words are often

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Employers are constantly grappling with a
question not nearly age-old: how much is too much social media monitoring?

“You can’t blame employers for being curious
about what employees are doing on the internet,” said Lewis Maltby, president
of the National Workrights Institute. “It’s not invasive of privacy — the
employee posted it on the Internet for the whole world to see.”

But the fact employers can monitor employees’
social media activity does not mean they should, said Maltby, who served as
general counsel and head of HR in a previous position.

“Would you hire a private investigator to go
through an applicant’s garbage can, looking for something that might be
relevant to their job application?” Maltby said. “If you wouldn’t do that, why
are you going through the Internet looking for something that might be

The same applies — and even more so — to
checking up on current employees, he said. To monitor everything an employee
posts on the Internet on the chance that someday maybe something relevant will
pop up, Maltby said, is neither fair nor cost-justified.

Maltby says the only fair way to track the
social media activity of an employee or prospective employee is to hire a
third-party screener. The third-party company would look at social media sites
and report only those items relevant in a professional setting — a method that
removes one certain risk: the more personal information an employer finds about
an employee, the greater the chance that the employee will accuse his or her
boss of discriminatory decision-making.

Once employers learn of an employee’s
religion, sexual orientation, political stance, they have opened themselves up
to potential lawsuits if the relationship sours, he said.

“It’s virtually impossible to prove that you
didn’t use information you had,” Maltby said. “The smart thing to do is don’t
go looking for information you can’t legally use. And whether you’re looking
for that kind of information when you conduct an Internet search or not, you’ll
find it.”

Employers scan social media sites long before
prospective employees start working in the office, which Maltby said is a risk.

“There are times when you find out something
that just is a serious concern, or maybe even an automatic disqualification,”
Maltby said. “The problem is, what else are you going to find out?”

While HR professionals should not allow
irrelevant information to influence their decisions, they often do, Maltby
said; they are human, too.

Social Intelligence, a Santa Barbara,
California-based social media data and analytics company, works with employers
to find publicly-available social media and online data that is professionally
relevant only.

“If you go out and you just randomly search
someone on the Internet, it’s very hard to do that in a systematic way,” said
Social Intelligence CEO Geoff Andrews during a phone interview. “It’s not a
standardized process, you’re not being consistent, you’re not necessarily being

At Social Intelligence, the process is
systematic and standardized. When an employer hires the firm, he or she chooses
items from a list of pre-set criteria. The firm will alert an employer to such
findings as potentially violent activity, sexually explicit activity, illegal
activity, demonstrations of racism or intolerance. If an employer requests any
information that could be used in a discriminatory manner — medical history,
after-hours activities — the firm will not honor that request, Andrews said.

Social Intelligence works with companies both
during the hiring process and after. A company can hire the firm to monitor
employee social media activity in an effort to ensure that employees are not
sharing private company information or negatively representing the organization
in the virtual realm.

“A lot of times, people look at these types of
services as, ‘Oh they’re trying to catch the bad employees,'” Andrews said.
“Sometimes, people share information and they may not realize that they’re
sharing it publicly, and so it’s about making the employer aware so that they
can fix that.”

Employers should obtain employee consent when
doing social media checks the same way they would when performing a criminal
background check, Andrews said; it is important that employers build “a
community of trust.”

While there is no federal law that prohibits
employers from sifting through applicants’ or employees’ social media activity,
employers should ask themselves why they are looking and what they are looking
for, said U.S. Equal Employment Opportunity spokesperson Christine Nazer.

“It’s part of being in the 21st century,
online technology,” Nazer said. “We just caution employers not to use
information gleaned from social media accounts to make employment decisions.”

The department also advises employers not to
ask job applicants for their social media site passwords, Nazer said.

“There’s just all sorts of pitfalls, potential
legal pitfalls, if employers get into the habit of poking around an applicant
or employee’s social media account,” she said.

State law does address social media policies.
Employers in 33 states have a legal right to request access to their employees’
personal password-protected Facebook accounts and other personal sites, said
ePolicy Institute Founder and Executive Director Nancy Flynn; employers in 17
states face a ban that prohibits them from requesting access.

The employers who can legally monitor their
employees’ personal accounts, Flynn said, have to decide whether or not they
need to check up on employees’ online activity.

If an employer has reason to believe that an
employee has violated company ethics guidelines, breached confidentiality
policy, posted customer data on the Internet, or is posting defamatory
statements about suppliers or the company itself, Flynn said, that employer
would have “legitimate reasons” to take a look around; but superfluous snooping
will benefit no one.

“You don’t want to go on a fishing
expedition,” Flynn said. “You don’t want to just snoop around for the sake of
snooping around; because, if you do that, you may end up firing employees who
are otherwise good employees just because you don’t like the bikini shots that
are on their sites.”

Employers should make expectations clear,
telling their staff members whether or not they can identify themselves as
employees of the company on personal accounts and making rules known.

Guidelines are important, and so is training —
according to Flynn, a company should hold formal training sessions annually, at
least — to keep pace with changing laws and regulations, evolving technology
and employee arrival and departure.

“Your average employee doesn’t like the
thought of being monitored,”  said Flynn,
who has authored several books including “The Social Media Handbook.”

In training, employers should alert employees
to the risks associated with social media and explain that the business has the
legal right to monitor its own systems, any public websites and, in certain
states, personal sites, Flynn said. Companies should continually educate
employees throughout the year.

When speaking to employees, Maltby advises
employees not to criticize their bosses — “not even mildly, and especially not
if it’s true” — in email or on the Internet. His message to employers: Find a
trusted third party, ask that person if the finding really matters. Or, do not
run the search in the first place.

“Searching the Internet of incumbent employees
is bound to get productive employees fired and hurt the company,” Maltby said.
“In the long run, it causes a lot more problems than it solves.”

The time to check the virtual world comes when
an employer or HR professional has reason to believe something inappropriate is
going on, Maltby said. In a case of suspected sexual harassment, for example,
to check past emails and run an Internet search might be appropriate.

“But that’s because, in that situation, there
is a legitimate reason to be concerned that something is seriously wrong and
you’re going to find evidence by looking at the Internet,” Maltby said.

According to online reputation management
expert Andy Beal, the less employer oversight, the better.

“If you put out a social media handbook with
200 guidelines in it, then your employees are going to just clam up and not
want to say anything about your company,” Beal said. “You have to trust your
employees, you have to give them the benefit of the doubt.”

Companies that put out handbooks filled with
policies by which employees must abide have the least engaged employees, he

“You want to empower them to go out and be an
ambassador for your brand,” Beal said. “It’s much better to give them a few
pointers and guidelines and then trust in them to want to do the best for your
company; and if they make a mistake, educate them, deal with it on a one-to-one

Beyond employees’ social media activity,
companies should be monitoring any online buzz — Twitter, YouTube, Facebook —
around their brand, Flynn said.

“You have to have a policy in place to protect
your organization, its assets, its people, its customers, its future,” she
said. “You can’t approach monitoring as just kind of a casual activity.”