“Should Companies Monitor Their Employees’ Social Media?” This question was debated by the Wall Street Journal on 5/12/2014.

On one side of the debate was Ms. Nancy Flynn who took the position that companies absolutely must monitor their employees’ social media use, as well as use social media to screen job applicants. Or in her words:

Management has a right and responsibility to monitor how employees are using social media at all times … companies should ask for access to employees’ Facebook accounts and other private social media.

Mr. Lewis Maltby took the contrary view that monitoring employees’ social media use should be the exception. That exception being limited to when it is believed an employee engaged in misconduct and it should not be used to screen job applicants.

The fact is the vast majority of what employees do on the Internet has nothing to do with work, takes place during their private lives and is done on their personal computers … It’s simply too easy to turn social-media searches into fishing expeditions.

As to using social media to screen applicants, Ms. Flynn opined that companies are not using social media to “snoop[] around for, say, embarrassing photos that offend HR’s sensibilities.” Mr. Maltby disagreed noting that “Employers are human and cannot avoid being offended by employees’ private behavior that goes against their values.  

Social Media Reasons for why an Employer Did not Hire a Job Candidate.

Against the backdrop of this debate, however, the numbers appear to support Mr. Maltby’s position, at least on the hiring side of the equation. Specifically, the WSJ cited a survey that found in 2013 employers who rejected a job candidate after researching them on social media listed the following as the top activities:

• 50% – Candidates posted provocative/inappropriate photos or information;
• 48% – Candidate posted information about drinking or using drugs;
• 33% – Bad-mouthing a previous employer;
• 28% – Discriminatory comments related to race, gender, religion, etc.; and
• 24% – Candidate lied about qualifications.

In other words, more employers rejected candidates based on social media for subjective values (disclosing inappropriate photos/info) rather than more objective, job-related criteria, e.g., discriminatory comments and lying about qualifications.

So What’s The Right Answer?

At best, these contrasting views on employee social media monitoring make for good discussion. But inevitably such extreme positions do not shed light on the question of whether your company should monitor employees’ social media use. 

And taking such extreme positions can leave your company worse off. Consider for example Ms. Flynn’s unwavering belief that monitoring is not only a must, but employees should facilitate this monitoring by turning over social media accounts.

In reality and contrasting this position, Michigan law, like numerous other states, have generally banned such employment policies, absent extenuating circumstances. See Employer Recommendations for Complying with Michigan’s Social Media Password Law.

Even without such laws, a social media monitoring policy exposes employers to unnecessary risks (Requiring Employees or Job Applicants to Turn Over Facebook Passwords? Three Reasons Why This is a Horrible Idea).

In addition to legal risks, an employer mandated social media monitoring policy has operational short-comings. First, it takes time and resources – both of which are often scarce to begin with – to effectively carry out such a company policy. Second, it should be expected that such a forced policy will take an adverse toll on creating a positive company culture for existing employees and make it difficult to attract  and retain top employee prospects.

In summary, the answer to whether your company should monitor employees’ social media use and use social media to screen job applicants should be driven by a meaningful analysis of business needs, risk assessment, and guided by legal counsel to (hopefully) bridge the two.

For more information about reducing the risk of using social media in your workplace, including investigating misconduct as well as creating policies and procedures for companies that use social media to screen job applicants in a lawful manner, contact social media and employment attorney Jason Shinn.