How Far Should Employers Go With Employee Monitoring?

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

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 relevant?”

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 fair.”

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 said.

“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 basis.”

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.”


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