Words and Actions Matter

One of the hardest things to do as an adult, is go through a hiring process. It can take months to even get a call back. Businesses can receive thousands of resumes every day that they need to sort though. Businesses use everything from first impressions to resumes when making employment decisions. In today’s world of social media and oversharing, businesses are now implementing social media as a hiring tool. This paper will explore a person's right to free speech together with a company's obligation to hire the optimum person for the job. Concurrently, this paper will cover the legal and ethical issues with a businesses application of social media when hiring.

“Social media makes public profiles an easy click away.” (Hazelton, n.d.). The fact it is so easy to gain access to peoples out of office shelves makes it practically a gold mine for hiring personnel. People tend to show their true selves through their social media, whether through their own posts, reposts or comments. Opposed to hiring interviews and resumes which tend to only tell about the good things. Companies want to hire the best and want to hire people who are good for their company.

Social media provides proof of what type of person a potential hire will represent the company. Alternatively social media can also provide a negative image to someone who has grown and changed. For example, someone who partied a lot in college and posted about it but 5 years later, when applying for a job, they have matured and haven’t drank in two years. A company seeing drinking videos and drunk comments on social media can deter them from hiring said person. This brings about an argument over the ethics of using social media.

A company would use utilitarian ethics to justify using social media as a hiring technique. Almost all companies, even fast food, want to hire employees that will stick with them for years and will bring a positive attitude to work. Utilitarianism is all about what is best for the whole rather than the individual. Potential hire A could have straight A’s from an ivy league school but have negative, racist or hateful posts on their social media. Potential hire B could have B’s and A’s from a community college and only positive, funny, friendly social media posts.

Even though potential hire A has the better grades and comes from a better school, their social media image will cause a company to hire B. This is because potential hire B is better for the company, they are someone who the company would not be ashamed to have it be known where they work. Potential hire B will also not have a negative effect on the companies reputation. Should the company hire A then they run the risk of someone being offended by a post hire A shares and running with the belief that the company shares that post's message. This could ruin the company's image and even run the risk of causing the company to go out of business. Utilitarian ethics supports this use of social media as hire B is more beneficial for the collective whole of the company, rather than hire A.

Alternatively Kantian ethics could be used to counter the use of social media when hiring. Kantian ethics focus on doing an action only if you would want someone else to do the action as well, right up there with the Golden Rule. In this case, every company has to think about their own social media posts and whether they would want their hiring experience to rely on that one bad post or bad posts from years and years ago. In this case ethics could argue that it is unethical to use someone's social media past against them. If every person's hired chance was based on their one bad mistake or younger selves bad choices then there could possibly be thousands of managers, CEOs, directors, etc that were never hired and never given the chance to become the great people they are now.

Some could argue that the first amendment protects them from companies being able to use their posts against them. This is untrue. Although the first amendment does protect people's freedom of speech from the government, it does not protect people’s rights from private employers. This means that yes you can say what you want on your social media page and the government isn’t allowed to come arrest you for it, but private companies are allowed to see your public social media pages and utilize the information they see to make decisions on whether or not to hire you.

Legally speaking, companies have every right to use all the resources available to them when making hiring decisions. It is a company's legal responsibility to do what is best for the company and hire the best people for the job. Anything posted on a public social media page can be seen by anyone. So much like how police can arrest someone for doing drugs in videos on facebook, a company is allowed to not hire someone for having negative posts on their social media pages.

Every person on social media should already know that once it’s on the internet, it never goes away. This means one should always be making sure whatever they are posting is something they wouldn’t mind any from their parents to future employers to see. If they choose to post harmful posts anyways, then they are taking that chance and potential employees have the legal right to see these posts and take them into consideration.

Companies are also taking social media into consideration when it comes to keeping employees. This means that one wrong post to social media can cause people to lose their jobs. Ethically speaking, employees would argue that their personal lives are separate from work and they shouldn’t be judged by acts taken during their personal time. Alternatively, most companies utilise contracts that hold verbiage about social media and the possibility of it affecting someone's employment status. The text describes a contract as “an agreement that is enforceable by a court of law or equity.” (Cheeseman, 2019). Contracts are binding and if broken can lead to serious consequences, in this case possibly being fired.

Every time someone is hired for a job they sign a contract. Typically these contracts include work schedules, rules, and salary. In today’s world many of these contracts also include policies about social media. These policies can range from not being allowed to say you work for the company unless you want the company to be able to use your social media against you, all the way to not being allowed to post anything at all about the company or the fact you work for them.

The American Medical Response of Connecticut holds a policy for employees that “bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves.” (Greenhouse, 2010). They fired a woman who had violated this policy causing the National Labor Relations Board to step in. They argued that the policy was too broad and that the woman's actions were actually a protected act and the company was breaking the law. In this case the woman had been complaining about work conditions with other employees.

The National Labor Relations Act actually protects employees rights to discuss work conditions and prevents employers from punishing employees for doing so. The company argued back that “the employee in question was discharged based on multiple, serious complaints about her behavior,” (Greenhouse, 2010). This meant that she was fired for other reasons not just for her social media. They also argued that her social media messages went beyond discussing work conditions and into mocking, ridiculing and bullying a supervisor. Stating she used the number 17 to discuss the supervisor, 17 being the “company’s lingo for a psychiatric patient.” (Taylor, 2020). The company considered the statements disloyal and defamatory.

In this case, if the woman was truly fired for multiple reasons, not just her ridiculing comments, then the company has not done anything ethically wrong. Not only are they protecting the company from a possibly negligent employee but they are also protecting every employee they have. Utilitarian ethics step into play here as well, by firing someone who has supposedly bullied and mocked a fellow employee over social media, they are showing the entire company that this type of behavior is not appropriate. This means others who may want to do the same behavior will think twice before doing it and those who are afraid of being on the receiving end of this behavior feel protected by their company and have a safe work environment.

Kantian ethics could also come into play, this theory is all about doing to others what you want to be done to you. This company has now stated that a bullying atmosphere is not to be stood for. Other businesses may use this company's actions as well as ethical fundamentalism to follow in this company's lead of not allowing mocking or bullying behavior over social media, not just in the workplace. This provides a safer atmosphere for employees and could lead to a better work performance by employees.

Having a contract set in place that highlights social media use, definitely covers a lot of legal liability but does not always cover everything. Social media is still relatively new and so are the contracts and laws surrounding it. Much like anything else, cases are still being heard that may change the way companies are allowed to use social media. Until a case comes along that has a major outcome against companies using social media to fire people, then employees should always be careful about their social media pages as it can lead to them being jobless.

When companies utilize contracts to control social media with their employees, it makes it so an employee would be in breach of contract should they not follow the signed rules. This means that legal speaking, should someone go off and bash their employer after signing a contract stating they won’t do that, then they have breached their contract with their employer. This allows the employer to take steps to either reprimand and warn the employee, or if the situation is bad enough it allows them the opportunity to fire them regardless of that employee's job performance or history with the company. Should the breach of contract cause a major loss in business, that employee could even be held financially responsible for the loss. Should an employee lie over social media about their employers beliefs or simply make things up about the employer than that person could be found as committing fraud.

Employees may try to argue that the first amendment allows them to say what they want about their job, but in reality that protection only applies to the government not private business. This means the government cannot restrict a person's right to say what they want on social media but private companies can prevent their employees from being able to say certain things through their social media pages.

There are laws put in place that allow employees protection from their employers when it comes to discussing things like pay and benefits over social media but it does not protect employees when it comes to derogatory posts that could ruin a companies self image or bashing and bullying of their employer or fellow employees. “While employees have certain rights with respect to personal privacy, companies also have the right to set a certain standard of conduct for their employees.” (Tayor, 2020).

Companies have a responsibility to both themselves, their shareholders and their customers to hire and keep only the employees that are the best fit. Someone who is bashing their own employer or posting things that go against a company's core values is just as bad for the company as someone who is always slacking off and late to work. Ethically speaking, many could argue that companies investigating employee social media is a breach of privacy or unfair but at the same time it could be argued that a company has an ethical responsibility to hire ethical people.

In the past, jobs hired mostly through referrals and school records. In today’s world, businesses can receive hundreds of thousands of applications and they have to narrow it down to just a few dozen. They have added social media into their hiring repertoire as a means to help narrow down applicants. Throughout this paper, different ethical theories have been discussed as well as how both business and potential employees utilize these theories. Overall both sides have valid ethical arguments but at the end of the day it is the company's right to hire the best of the best, just as it is a potential hires responsibility to be mindful of how social media may affect future endeavors.

Reference Page

Cheeseman, H. (2019). Business Law (10th ed.). Pearson Education.

Greenhouse, S. (2010). Company Accused of Firing Over Facebook Post. New York Times.

Hazelton, A., & Terhorst, A. (n.d.). Legal and ethical considerations for social media hiring practices in the workplace. Retrieved February 25, 2021, from https://scholarworks .wmich.edu/hilltopreview/vol7/iss2/7/

Poon, S. (2014). Product Sustainability: Utilising Brand System to Revive Retrobrands.

Sameen, S., & Cornelius, S. (2016). Http://ljournal.ru/wp-content/uploads/2016/08/d-2016-1 54.pdf. Journal of Business Studies Quarterly, 7(1). doi:10.18411/d-2016-154

Taylor, J. C., JR. (2020, August 25). Can comments on facebook get me fired? Ask hr. Retrieved February 25, 2021, from https://www.usatoday.com/story/money/columnist/2020/08/25/ can-your-personal-comments-social-media-get-you-fired-ask-hr/5628109002/