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Social media has become such a blunt tool, it may force employers to reveal information they would normally keep confidential. That's what happened in response to the widely publicized confrontation between a dog walker and a birder in New York's Central Park.
Once the video of the incident between birder Chris Cooper and Amy Cooper (no relation) was published, cancel culture spun into action. The name of Amy Cooper's employer was broadcast, and Twitter users urged Franklin Templeton, an investment firm, to fire her.
The next day, Franklin Templeton disclosed in a tweet that it had fired Amy Cooper, an unusual action for a firm in the private sector where terminations are normally kept confidential. Legal experts say, however, employee privacy, with respect to terminations, is not protected.
There is another side to online activity for employees and HR managers alike. Social media users leave behind digital records that can be collected and scrutinized by prospective and current employers.
Tech companies see an opportunity and are building tools to help HR departments do just that. The tools can assess public behavior on social media for toxic statements, such as sexist or racist comments. By automating this process, the tools can speed up what recruiters often do manually: help screen job candidates and keep tabs on how existing employees behave online.
With job candidates, "it's best practice today to do a search on social media," said Nannina Angioni, a labor and employment attorney and partner at the law firm Kaedian LLP in Los Angeles. "There are so many people who do post things online for public viewing that would go to suitability," she said.
Employee privacy and digital footprints
There are technologies emerging that might scrape a person's digital footprint and "translate that into a quantitative estimate of whether you fit with a certain role or not," said Tomas Chamorro-Premuzic, a professor of business psychology at Columbia University and chief talent scientist at ManpowerGroup, a staffing and professional services firm in Milwaukee.
Chamorro-Premuzic believes technologies that can assess social media posts of job candidates and employees will rise in use. "There's a lot of scientific research that suggests it can definitely be done. Whether it should be done is a different issue," he said.
Some of the AI-enabled tools that Chamorro-Premuzic discussed claim to analyze personality based on a person's digital persona. For instance, Crystal Project, Inc., in Nashville, Tenn., has a tool called Crystal Knows, which claims to determine personality from LinkedIn profiles. The company offers a Chrome extension and a basic free version, and it says it can be used by recruiters as well as job applicants who are researching a manager they might be reporting to.
Other vendors, such as Fama Technologies Inc., in Los Angeles, analyze social media posts from job candidates and employees for problematic behavior. In a recent blog post, it provided guidance to firms on how to roll this technology out as part of a "workplace toxicity reduction effort." Bullying and harassment are examples of toxic behavior that can be disruptive in the workplace. The behavior may be evident in social media postings of a job candidate or employee.
Researching social media posts is already "more prevalent than people realize," said David Lewis, president and CEO of OperationsInc, an HR consulting firm in Norwalk, Conn. Headhunters are likely to conduct this kind of social media research, he said.
Job applicants won't learn the role social media played if they don't get an offer. "There is no public disclosure about this in any way, shape or form," Lewis said.
Some firms may not review social media posts and will stick to job interviews and other evaluation methods, Lewis said. But he believes interviews may not reveal enough about a job applicant.
Employers probe social media
If something is in the public domain, such as an applicant's Twitter feed, "Don't you owe it to yourself and your company to look at it, to get more of an understanding of that person?" Lewis said.
There are risks for employers that examine social media accounts.
"The risk arises where you've got somebody who has a public social media profile and they are disclosing private things," such as a medical diagnosis, sexuality or religion, Angioni said.
"Candidates have protected rights just the same as employees," Angioni said. Those rights include not being discriminated against, she said.
But employee privacy can be tenuous, something illustrated by Franklin Templeton. Terminations of employees are, by practice, private, but legal experts say there's nothing to stop firms from announcing a firing except the risk of litigation.
"Generally speaking, there are no laws that say an employer specifically and directly can't disclose circumstances around an individual's employment separation," said Rebecca Baker, a labor and employment attorney at Bracewell LLP in Houston. But they don't do so because of a risk of a legal claim, such as defamation, she said.
Another legal claim could be around tortious interference, or intentional interference with someone's ability to get future work, said Jessica Post, employment and labor practice group leader at Fennemore Craig P.C. in Phoenix.
The video and Amy Cooper's apology could make any claims against the firm difficult, Post said. Nonetheless, the firm took a risk in making the firing public, she said.
Legal experts see Franklin Templeton's move as calculated, taking into consideration the legal risk versus the potential backlash from clients and employees. The investment firm didn't respond to a request for comment.
At a Bloomberg virtual conference last week, Jenny Johnson, president and CEO at Franklin Resources Inc., was asked how its employees and clients responded to the firing decision.
"I would say the overwhelming response was supportive and there was a segment that felt it was unfair -- but that was a small minority segment," Johnson said. "And we have to make those decisions based on our core values. We've always said we have zero tolerance for any kind of racism, and so we felt that it was important to make that decision."
"The best practice when you're an employer and you're terminating somebody is, first of all, not to disclose it publicly at all," said David Kurtz, an employment attorney at Constangy, Brooks, Smith & Prophete LLP in Boston. And even within the workplace, disclosing the reasons for a termination should be limited to senior management or those with a real need to know, he said.