Something Negative Was Posted Using Social Media. Now What?

Q. One of our employees posted something very inappropriate regarding one of our managers on their Facebook account. Another person showed this to the manager, who became very upset. Our HR department is telling me I can’t fire this person as it is a freedom of speech issue.  Is this true? What about the manager’s rights and our rights as a company to protect our employees?

This is a very hot topic in the hiring and firing world today. Companies need to be very concerned about things like this happening. Unfortunately, most of the time companies are caught completely off guard when this happens. Yet, given the explosion in social media every company that has employees should be prepared on how they will handle this. Consider starting with some sort of social media policy.

I asked Laura Fleming, a labor attorney and partner with the Newport Beach law firm Stradling Yocca Carlson & Rauth for her advice.

This is a very sensitive issue that depends upon the nature of the Facebook posting.  Under the National Labor Relations Act, all employees — whether or not they are members of a union — have the right to join together and discuss the terms and conditions of their employment.  Thus, employees who complain about management, whether offline or online, may be engaging in protected activity.  Whether a Facebook post is protected depends upon (1) whether the employee is voicing an individual or a collective gripe; and (2) whether the post relates to the terms and conditions of employment, or  is simply an inappropriate personal attack.  Posts which are supported by co-workers, and which relate to the terms and conditions of employment, are likely protected.

Sometimes it can be very difficult to tell the difference between protected and non-protected comments by employees online.  Thus, before taking action against the employee, I recommend that you consult a labor attorney.

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I welcome your thoughts and comments.

Brad Remillard

Caution – Using Online Information To Not Hire Someone

Q:  Is there a legal problem if a company looks online, and then uses this information as part of a no-hire decision?

This is one of the hottest topics for many companies right now. Most companies are using the Internet in some form to check out candidates before they hire someone. I would suggest checking with your labor attorney to make sure you aren't violating any federal or state laws. In addition, it is becoming more important that companies protect themselves by having some social media or Internet policy.

Since this is beyond my scope I asked Laura Fleming, a labor attorney and partner with the Newport Beach law firm Stradling Yocca Carlson & Rauth, for her advice.

It is lawful to check publicly available, online information regarding a candidate.  However, there is a caveat.

Employers may not discriminate based on any “protected class” (race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation or veteran status).  An employer's online search will likely uncover much information irrelevant to the job position, including protected class information.  Thus, if a manager does conduct Internet background searches, they must not allow irrelevant, protected class information to influence the hiring decision.

In addition, since some online data is shared only with certain parties (for example, Facebook information which is limited to friends), employers should not use deceptive or intrusive means to view such information, as this could lead to an invasion of privacy claim.

If a manager discovers publicly available information regarding a candidate, they may use such information to reject the candidate, as long as they are not making that decision because of any protected class.  For example, it is lawful to reject candidates because of inappropriate pictures or comments, or even political views that are incompatible with the employer's culture (although this may eliminate an otherwise terrific candidate).  Again, the employer must ensure that such criteria is not intertwined with any protected category.

You can explore our audio library, download free examples of compelling marketing statements, download a summary of our research project that identifies the biggest hiring mistakes, and get our culture assessment tool by clicking the links. All of these are free.

I welcome your thoughts and comments. Please forward this to your contacts on Facebook, LinkedIn, or anyone you think would benefit from this post.

Brad Remillard

Stop Attracting The Bottom Third Of The Candidate Pool

Most professional sports teams have scouts. These scouts are constantly on the lookout for talent. Most of the time these scouts are engaging potential talent long before they are ready for the big leagues. In fact, often long before they even need them.

The one thing that these teams and scouts know is that they will always need top talent if they want to win.

Who are your scouts? Are you engaging potential talent before you need them? Is this important for you to win?

Over the last few years I have asked hundreds of CEOs and key executives, “When do most companies start the hiring process?”  Rarely do I hear anything other than, “When they need someone.”  Then, how long does it take to hire a person? Most believe that can take between 2 and 4 months. At which point the hiring manager is so desperate that they are pretty much willing to take the proverbial, “Cream of the Crap.”

I believe that “desperation hiring,” if it isn't the biggest hiring problem, certainly is very near the top.

The problem is not that most companies start the hiring process when they need someone, it is that companies start the hiring process with an empty bench. They have to start from scratch every time. It can take weeks or months just to start locating talent. Top or otherwise.

This may explain why so many companies do an exceptional job attracting the bottom third of the candidate pool.

There is a better way. Companies, like professional sports teams, need to have scouts. They need people out engaging people that might be a fit for key positions.  Most companies know the key positions that sooner or later will have to be filled once the economy changes. Even in good times, most companies know way in advance the positions they are contemplating hiring for. However, unlike professional sports teams, companies don't have anyone out scouting for talent prior to it being needed.

So how can companies get scouts out looking for them? Here are a few suggestions:

1. Whether you have one employee or one thousand employees,  they should be your scouts. Make sure all of your employees are constantly aware of potential positions you are thinking about filling. Make sure all employees have a Compelling Market Statement. See some examples of these by CLICKING HERE.

2. Approach the hiring process with a proactive approach. Encourage all of your employees to be constantly on the lookout for people they think will fit your culture. When they encounter someone, all they have to do is give the potential candidate a copy of the Compelling Marketing Statement and let them know that your company is always looking for talented people and if they are ever looking, to be sure to think of your company. The farming process has begun. That is what scouts do.

3. Don't be afraid to engage people you think might potentially be great employees. This can be as simple as meeting them  for coffee, including them on your newsletter, updating them of company announcements, sending an email once a quarter, or anything that keeps them on your radar screen and you on theirs.

4. Make it a habit of building queues of potential people for key roles or upcoming roles. Don't wait until the last minute to start looking for people. Both myself and my partner Barry have placed many people that have been sitting in our database for years. That is why recruiters have people ready to go for you when you call them. You and your team can do the exact same thing. Just knowing where potential people are located is a good start.

5. Build a compelling LinkedIn profile and a Facebook Fan page. Update the Facebook fan page regularly and invite these potential employees to join your page.

6. If you attend trade shows or conferences, don't just throw the business cards your team collected away. Send each an email to join you on LinkedIn and your fan page on Facebook. If there are a few  really good potential employees in the cards, set a time to meet for coffee. Let them know the next time you will be in town and attempt to get together.

7. Do you ask your vendors, customers, trusted advisers, and other service providers for referrals of the best people they work with or know? These can be the best source for building bench strength.

8. Do you encourage your managers and key executives to be active in professional associations, their school alumni association, serve on non-profit boards, or other community associations such as Rotary? These are outstanding places to do some scouting.

I recently wrote another article, “Can't Find People? They Are Hiding In Plain Sight” because so many hiring managers we work with walk right by potentially great people. This article has three real examples of how people are right there for the asking.

As the economy turns, top talent will be in demand once again. Think back to just three years ago. This top talent will generally end up in one of two places, your team or your competitor's team.

To find out just how effective your hiring methodology is, download our free 8-Point Hiring Methodology Scorecard. This will help you to develop a truly effective hiring process. CLICK HERE to download yours.

We also have the chapter on sourcing from our book, “You're NOT The Person I Hired” as a free download. CLICK HERE to download your chapter on sourcing top talent.

You can also join our LinkedIn Hiring and Retaining Top Talent group. This is an excellent source for discussions and articles on these topics. CLICK HERE to join.

I welcome your comments and thoughts.