Damned if you do and damned if you don't. That is the place employers may be speeding toward as they get wildly conflicting demands regarding job applicants' social media postings.
Postings on social sites certainly can and have gotten some employees fired. Presumably, they have persuaded some hirers to pass over job applicants -- sometimes with what seems good reason. For instance, after having his real identity exposed on Gawker, the Reddit troll Michael Brutsch was abruptly fired recently by his Arlington, Texas, employer, a payday loan shop.
Posting on Reddit as "Violentacrez," Brutsch found his, well, metier. Per Gawker's Adrian Chen: "His speciality is distributing images of scantily-clad underage girls, but as Violentacrez he also issued an unending fountain of racism, porn, gore, misogyny, incest, and exotic abominations yet unnamed, all on the sprawling online community Reddit."
In separate but related news, a bill in the New Jersey Legislature would prevent employers from requiring job applicants and employees to turn over social media account names and passwords. That bill had been thought to be on a fast track, putting New Jersey on a growing list of states (including California
and Maryland) with such prohibitions in place.
And then came Cristina's Law, a grassroots effort to require employers to include social media in job applicant background checks. The project stems from an Aug. 31 shooting at a New Jersey supermarket, where an evidently mentally ill employee shot and killed co-workers, including Cristina LoBrutto. The shooter, Terence Tyler, had put up a medley of violent posts on social media, including this tweet from 2009: "smh [shaking my head] is it normal to want to kill ALL of ur coworkers? Maybe but I'm actually in a position where I can, smh."
The petition behind Cristina's Law says: "Had this employer simply performed a background check that included a basic review of its prospective employee's social networking sites, it would have easily learned that this individual made direct threats against those with whom he worked or would work."
The question prompted by all this: What's an employer to do?
In the case of Brutsch's (a.k.a. Violentacrez's) employer, we may well applaud the decision to fire, based on the volume of his negative online revelations. But the New Jersey case is different and more unsettling. Tyler's "smh" tweet dated back to 2009 -- three years before the fatal incident. It was embedded in a series of nearly daily, seemingly normal tweets about football, the gym, and pizza. The shooter's Twitter account went dormant in December 2009. I have seen no mention of more current Twitter postings under a different name or Facebook posts under any name.
Marc Bourne, a vice president at Know It All Intelligence Group, a Bensalem, Pa., background checking firm, told us enactment of Cristina's Law might trigger its own enormous complexities for employers. He said employers can easily run afoul of fair employment practices by unthinkingly noting legally protected information posted by job applicants -- pertaining to everything from religion to a pregnancy. Such information legally cannot enter into hiring decisions; that's why no employer would ever ask the woman with a tummy bulge, "Are you pregnant?" But this is the kind of personal detail found on Facebook and Twitter.
How would an employer ignore data that would incriminate the firm? Bourne suggests hiring third-party background-checking firms like his to do the job -- though some employers may balk at that extra expense.
There are still more problems with the well-intentioned Cristina's Law. Jackie Ford, a Texas lawyer, told me in an email:
Most employers currently are not legally required to do any kind of background check (via social media or otherwise), which makes an internet-specific requirement unusual to say the least. A requirement that employers do an "internet background check" also fails to account for basic aspects of the medium, not the least of which is that much of what is communicated on the internet is false... You have a long list of legal issues facing any employer implementing a background check program.
Bottom line: Employers had better hope the New Jersey law requiring social media background checks goes nowhere. This is a can of worms that simply should not be opened.
— Robert McGarvey has been online and writing about the Internet for nearly 25 years.