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Ms. Driver was mad. She drove an ambulance for the “We Really Care Ambulance Service,” (not the real company) and one day her supervisor asked her to write a report about an incident that involved a customer complaint. Ms. Driver (not her real name) asked for a union representative to be present when she wrote the report. She never got the representation. That’s one of the reasons she was mad. Apparently there were more.

When Ms. Driver got home from work, she went into her Facebook page and posted comments about her supervisors, one of whom she called a “scumbag.” Some of her coworkers agreed with the “scumbag” assessment and posted according to the National Labor Relations Board “supportive responses.” Ms. Driver, seeing all the support she was getting, she was inspired. She posted more derogatory comments about her supervisor.

As a result, Ms. Driver was suspended for her comments and later fired. It turns out she had violated the company’s blogging and internet posting policy. That “prohibited employees from making disparaging remarks when discussing the company or supervisors,” reports the NLRB.

The NLRB didn’t agree. It turns out that calling a supervisor a “scumbag” is perfectly okay as long as it “did not interrupt the work of any employee” and it occurred “outside the workplace.”

Had the name calling been accompanied by “verbal or physical threats,” it would have been different. But just sounding off isn’t enough to get someone fired.

The NLRB wasn’t through. It also ruled that the ambulance company’s entire internet policy was illegal mainly because it contained such ambiguous remarks as proscribing “rude and discourteous behavior.” Objectively determining what “rude and discourteous” mean is difficult, if not impossible. Rude and discourteous is rude and discourteous to one person, but to another is just somebody sounding off, and to a third is speaking the truth, as was the opinion of several of Ms. Driver’s coworkers.

The point of all this is that employers need to beware when using social media as a tool for assessing both prospective and current employees.

It doesn’t involve only free speech issues but also claims of illegal discrimination. Rick Wallace, a labor and employment lawyer, says that the situation is dangerous. “This is because you have a picture, you know the race of the employee, their birthdays, religious information, political information. You’re getting all kinds of protected characteristics that you wouldn’t on a job application.”

Once someone has seen anything, such as an employer looking at a Facebook page, he or she can’t turn that around and have it unseen. Even if what the employer saw didn’t make any difference in the decision, because it was seen, a jilted employee could claim he or she was denied employment or fired because of something seen on the Facebook or any social media site. Good luck proving otherwise.

Let’s take the flip side of this question, negligent hiring and retention. Hire someone or keep someone who poses a danger to the well-being of the company or other employees, and if the employer knew or should have known about the danger, the company is liable for any damage that employee might be responsible for.

That means employers have a duty to search out any issues that could result in insider threats. Hireright did a Benchmarking Survey in 2014 and found that 27 percent of employers rescreen existing employees. Industries where that is compulsory are those such as transportation and healthcare. How do you do that safely?

Les Rosen, an employment attorney for a screening company, warns that “insider threats” range from “embezzlement, fraud, and theft to child molesters and active shooters. . . come from anyone with access to workplaces including employees, contractors, temporary workers and even ex-spouses.” We can never be too careful.

What does all that mean, then? Here it can be a danger to an employer if the company goes searching on Facebook for information about a prospective or current employee and uses that to refuse to hire or to fire the employee. On the other hand, if that prospective or current employee posts something that indicates he or she might be a problem, the employer does nothing about it, and that person ends up committing a crime that could have been logically inferred from a Facebook page, the company will end up on the receiving end of a lawsuit.

One screening company executive, Jason Morris, suggests that the employer use someone other than an employment decision-maker to screen. That means that the decision-making person would provide the screening party with criteria to look for. Red flags might be hate speech, violent tendencies or drug use, things that would affect the job performance and employability of a current or prospective employee.

One excellent such resource available to employers is a screening company, such as ReportIntel, that can look for things both in social networking and in other places that might show an employee is a danger to the company or other people. We have a duty to our business, our customers, and our employees to hire people who will not only do a good job but also be good citizens, so careful screening and rescreening is essential. We just need to do it right.


By Robert L. Cain

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