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Employer’s Use of Social Networking Sites: A Socially Irresponsible Practice

Article in Journal of Business Ethics · September 2010

DOI: 10.1007/s10551-010-0436-y

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Journal of Business Ethics (2010) 95:507–525  Springer 2010
DOI 10.1007/s10551-010-0436-y

Employer’s Use of Social Networking Sites: Leigh A. Clark

A Socially Irresponsible Practice Sherry J. Roberts

ABSTRACT. The Internet has drastically changed how book and MySpace initially began as forums for
people interact, communicate, conduct business, seek young people to connect and have evolved into a
jobs, find partners, and shop. Millions of people are using new type of community for social and commercial
social networking sites to connect with others, and exchange. Through a variety of tools (e-mail, chat,
employers are using these sites as a source of background blogging, instant messaging, photo sharing, news
information on job applicants. Employers report making
feeds), SNSs are used for job networking, targeted
decisions not to hire people based on the information
posted on social networking sites. Few employers have
marketing, and entertainment. The impact of SNSs
policies in place to govern when and how these online for communication is just now being understood.
character checks should be used and how to ensure that Following the 2009 elections in Iran, SNSs were
the information viewed is accurate. In this article, we credited with keeping communication open with
explore how these inexpensive, informal online character people within and outside of Iran when traditional
checks are harmful to society. Guidance is provided to means of communication were limited by the
employers on when and how to use these sites in a socially Iranian government (Labott, 2009).
responsible manner. Many SNSs require the user to create a webpage
that contains information about the user that he or
KEY WORDS: background check, character check, she wants to share with others. Some members use
social networking, social responsibility these pages as billboards about themselves while
others use them as personal diary pages. Most SNSs
Abbreviation: SNS: Social networking site
allow the user to limit access to posted online
material to a designated group of people while
Introduction sharing a public portion with all fellow users.
However, users are learning that information posted
Advances in technology have once again shifted how on the SNS often becomes available to people
people communicate with each other. Not only has beyond the intended audience. For example, Face-
wireless communication made it possible for us to book allows its advertisers to use members’ posted
talk to one another when thousands of miles apart, photos in their advertisements without requiring
but now we can instantly receive e-mails, send text further consent or compensation to members. Few
messages, and ‘‘twitter.’’ Older generations recall users are aware of this policy or the steps required to
how people mainly talked face to face, while prevent their posted photos from being used in this
members of the newest generation often prefer manner (Harrington, 2009). Depending on how the
texting to talking face to face (Reid and Reid, 2004). SNS works and the privacy restrictions selected,
New communication tools are available such as friends of friends, including employers, may have
blogs, wikis, and chat rooms, as well as entire virtual access to their full profiles (Brandenburg, 2008;
communities such as Second Life. There are 1.6 Facebook, 2008).
billion Internet users worldwide (Internetworld- SNSs are also serving as an inexpensive and quick
stats.com, 2009). source of background information on job applicants
Many people use social networking sites (SNSs) to and current employees for employers. We are at the
stay in touch with each other. SNSs such as Face- crest of a major shift in practice by employers.
508 Leigh A. Clark and Sherry J. Roberts

Employers have always been able to request back- people to send documents instantly to people else-
ground and reference information on job applicants where, to be followed by the Internet and e-mail,
but have been self-restrained in doing so because of which has provided a new way for people to com-
the cost and legal requirements. Typically, back- municate. Now, people use sophisticated cellular
ground checks were reserved for serious candidates telephones to access the Internet, send instant mes-
and for jobs which had a business necessity for the sages, text, shop online, determine their location,
background information. This norm is now shifting, and document their lives in small ‘‘tech bytes’’ by
as employers are routinely conducting informal on- ‘‘twittering’’ or posting comments to their SNS’s
line background checks on people and without ‘‘walls’’ (New Media Consortium, 2007).
applicants’ knowledge. Based on the information Clemmitt (2006) noted that advances in tech-
they find, employers are making decisions. nology have an impact on how people interact so-
In a study of students and current human- cially. This is evident with the growth in the use of
resources professionals about their attitudes toward SNSs. Facebook, a popular SNS, began in 2004 as a
online background checks, we found that future way for college students to interact with each other
employees expect employers to check online for (Brandenburg, 2008; Facebook, 2009a). In 2006,
information available about them. Many employers Facebook expanded membership to the corporate
also believe that this is an acceptable practice.1 Other sector in the hope of retaining college alumni as
studies support this conclusion that employers are members (Peluchette and Karl, 2008). In 2009,
carrying out these checks and that employees Facebook reported over 200 million users (2009b),
understand that they are doing so (Brandenburg, Friendster had more than 100 million (Friendster,
2008; Zeidner, 2007). 2009), MySpace declined to 100 million users
In this article, we argue that, even though (Arrington, 2009), and hi5 had more than 80 million
employers may have a legal right to use SNSs in this users (hi5, 2009). hi5 states that it is the most globally
way and future employees expect them to do so, it is diverse SNS, with 80% of its users outside of the
wrong for employers to do this unless the informa- USA (hi5, 2009). When ranking sites based on the
tion obtained in this manner is essential to the job. number of unique monthly visits, the top three
To support our position, we explore how social in 2009 were Facebook, MySpace, and Twitter
responsibility theory directs employers to conduct (Kazeniac, 2009). Wikipedia (2009) lists more than
online background checks only when there is a 100 SNSs.
business necessity because of the negative impact Facebook describes its purpose as a ‘‘social utility
such checks have on society. We conclude by pro- that helps people communicate more efficiently with
viding guidance to employers on when and how to their friends, family and coworkers’’ (Facebook,
conduct online checks responsibly. 2009a) and explains that it digitally maps users’
real-world social connections. A growing site, Bebo,
purports to integrate all social networking and
Technology and interaction Internet sites so a person can go to one place ‘‘for
Facebook, MySpace, YouTube, Delicious, Twitter,
Advances in technology have greatly impacted on AIM, AOL Mail, Google Mail and Yahoo!
how people communicate. Prior to the existence of Mail updates’’ (Bebo.com, 2009). Some sites are
the postal service, people depended on messengers to more targeted to interest areas or time periods.
deliver messages verbally. Then, people depended Reunion.com and Classmates.com help people
on word to come from others via handwritten letters reconnect with people from their past, while
(Bellis, 2009). The telegraph made communication Eons.com is for Babyboomers, Café.com is for
possible over great distances and within a shorter mothers, Epernicus targets research scientists, and
time. The telephone greatly changed how people Disaboom is an online community for people with
communicated, becoming a main mode of com- disabilities (Wikipedia, 2009).
munication for more than 100 years (Bellis, 2009). The online social community is continuing to
During the past 20 years, technology has evolved evolve. Twitter is ‘‘a service for friends, family, and
rapidly. The creation of the fax machine allowed co-workers to communicate and stay connected
 SNS Character Checks 509

through the exchange of quick, frequent answers to USA. The law firm found that the student was
one simple question: ‘What are you doing?’’’ affiliated with a web site that contained negative
(Twitter, 2009). In 1 year, Twitter moved from the statements about female law students, even though
22nd SNS based on monthly visits to 3rd place in the law student had not posted any offensive remarks
2009 (Kazeniac, 2009). SNSs are more than a fad. (Samborn, 2007).
They are the next step in the evolution of interac- Evidence that employees are being fired for
tion between people, in particular among younger online information is discussed in the media and in
generations. They are beginning to be used more court documents. For example, a University of
and more by older consumers. Facebook noted Loyola swim-team member was kicked off the swim
significant growth in users with people over the age team for posting disparaging remarks about her
of 35 years in 2009 (Gaudin, 2009). coaches on Facebook (Clemmitt, 2006). Joe Gordon
is reported to be the first British blogger fired from
his job for making rude comments about his boss on
his blog (LaFerla, 2006). A US flight attendant lost
Growth in online checks
her job for posting a picture of herself online in her
uniform (LaFerla, 2006). A producer for one of
Despite the infancy of SNSs, surveys by various
CNN’s news shows was fired for blogging offwork,
entities over the last few years have found a growing
even though he did not identify himself as a
trend of employers conducting online checks using
CNN employee (Wolgemuth, 2008). Sprague (2007)
SNSs for information on job applicants. An em-
contains additional examples of employees who were
ployer can type an applicant’s name into a search
fired for information they posted online.
engine such as Google to see what he or she finds.
The discussion above demonstrates that, as the use
Some SNSs allow Internet search engines to search
of SNSs is exploding, employers’ use of online
the names of its users and make public profiles
background checks is increasing rapidly as well.
available. Some employers have their own Facebook
While the practice seems to be taken for granted as
accounts and may be able to see more than the
acceptable, particularly in the USA, few employers
public profiles, depending on the friends-of-friends
have explored whether the practice is ethical. The
links and privacy settings. In this way, an employer
authors, in their survey of US human-resources
can get a quick ‘‘character’’ picture of an applicant,
personnel, found that 43% of respondents reported
depending on what is available online (Campbell,
using SNSs to gain information about job applicants,
2008) (Table I).
but only 21% had received any training on doing so,
and 5% of respondents surveyed had a policy in place
governing the practice. In this article, we provide a
Consequences of online checks framework for that discussion, first by examining
whether privacy is a right, followed by an explora-
There are two main negative consequences that tion of why it is a company’s social responsibility to
result when employers view information online that refrain from using SNSs unless there is a strong,
they deem unacceptable: employers do not hire the legitimate business reason to do so.
job applicant, and current employees are fired. We
know that the former occurs because employers are
telling us that they make decisions based on the Privacy
information they find online (Careerbuilder.com,
2008; Peacock, 2009). However, most job applicants There is no universal definition of what privacy is or
are not notified by the employer that an adverse what constitutes workplace privacy (Miller and
decision was made for this reason. Rather, an Weckert, 2000; Rosenblum, 1991). The Merriam-
applicant receives a standard ‘‘the position has been Webster Online Dictionary defines privacy as
filled’’ letter or the person hears nothing more about ‘‘freedom from unauthorized intrusion’’ (2009). We
the position. An applicant could also have an offer will discuss privacy in terms of a natural or funda-
rescinded, as experienced by a law student in the mental right to privacy and as a legal right.
510 Leigh A. Clark and Sherry J. Roberts

TABLE I
Studies reporting employers searching SNSs for background information

Date of Study Percentage of employers per- Use of information

study forming online checks

2006 National Association of Colleges and 27% of employers report Not reported
Employers (Business & Legal Reports, Inc., searching SNSs for informa-
2006) tion on employers
2006 Careerbuilder.com (Brandenburg, 2008) 25% of hiring managers have 63% (of the 12% who have
conducted Internet searches looked at SNSs) said they did
(i.e., Google) not hire because of informa-
12% have looked at SNS tion found
profiles
2007 Society of Human Resource Management 50% of human-resources 20% of those who ran searches
Survey (Zeidner, 2007) professionals ran an Internet said they have disqualified a
search (Google, Yahoo!) candidate based on what they
15% reported checking SNS, found
and 40% of those who do not
currently check said they were
somewhat likely to likely to
check within a year
2007 University of Dayton Survey (Read, 2007) 40% of employers would look Not reported
at SNSs for information
2008 Vault’s Social Networking Web Site Survey 44% of employers reported 82% reported that they would
(Vault.com, 2009) checking SNSs for informa- let something negative on the
tion SNS impact their hiring
decision
2008 Careerbuilder.com (2008) 21% of employers reported 34% (of the 21% who looked
checking SNSs for at SNSs) reported finding
information content which caused them to
dismiss the person from
consideration
2008 Jackson Lewis LLP Survey 12% of New York employers Not reported
(Hrtools.com, 2008) had looked at online sites
2008 Authors’ Human-Resources (HR) 43% of HR professionals Not reported
Personnel Survey reported they had looked at
SNSs to gain additional
information
2009 Global Interviewing Practices and Percep- 25% of global employers 52% (of the 25% of the global
tions Survey (Peacock, 2009) 12% of UK employers employers who looked) said
reported they had looked at the information impacted
SNSs/online for information hiring decisions

Natural or fundamental right to privacy private spheres in his writings (DeCew, 1997); he
espoused that the earth and what was produced by
Discussions of privacy are traced back to Aristotle as nature belong to all in common, but that ‘‘each
he delineated between governmental activity and a person possesses himself (or herself) absolutely and has
private sphere associated with a man’s household property rights to that with which he mixes his labor’’
(DeCew, 1997). In 1690, John Locke also empha- (p. 11). A person owns that which belongs to and is
sized two distinct domains between public and acquired by himself or herself. Alan Westin provides
 SNS Character Checks 511

support that privacy is a natural right, documenting and smaller jurisdictions within each country have
that animals also share a need for individual or small- different rules as to what information is deemed
group seclusion (DeCew, 1997). Margaret Mead also private and out of the purview of the employer to
observed that different cultures have a universal need consider. We will provide an overview of some of
to establish realms of privacy: ‘‘All societies have the major differences in these jurisdictions. Some
techniques for setting distances and avoiding contact legal systems, such as Spain’s, strongly protect a
with others in order to establish physical boundaries personal realm of privacy that seems to trump an
to maintain privacy’’ (ibid., p. 12). employer’s interest in considering personal infor-
Although there is a lack of consensus about how mation when making employment decisions
privacy should be defined, there is a general belief (Arranda, 2002). Other jurisdictions (i.e., Brazil and
that there is a natural right to have some information Italy) guarantee that a person has the right of self-
about oneself kept from others. Warren and Brandeis determination, which includes prior notice and
(1890), in an influential paper, The Right to Privacy, consent as to how his or her personal data will be
argued that humans have a natural right to be left processed by an employer (Faleri, 2002; Filho and
alone. They wrote this paper in response to the press Leonel de Rezende Alvim, 2002). Others interpret
taking photographs of people and publishing the privacy in terms of a balance between protecting
pictures without a person’s consent. They built the the employee’s information and the legitimate
privacy right on common law that ‘‘secures to each needs of an employer to consider the information
individual the right of determining, ordinarily, to (Jeffery, 2002a). Some jurisdictions, Germany and
what extent his thoughts, sentiments, and emotions UK, hold that it is most important to protect the
shall be communicated to others’’ (Warren and contractual agreement made between two private
Brandeis, 1890, p. 198). individuals (employer and employee), acknowledg-
Introna and Pouloudi (1999) presented some his- ing that an employee can walk away from the
torical perspectives which describe privacy as a ‘‘free- employment relationship if he or she does not want
dom from the judgements of others’’ (Introna, 1997, to provide the information (Jeffery, 2002a, b;
p. 28), as having ‘‘control over knowledge about Reinhard, 2002). The US courts often take this
oneself’’ (Fried 1968 cited by Introna and Pouloudi, position, citing the doctrine of employment at will
1999, p. 29), or ‘‘the exclusive access of a person to a (Finkin, 2002). Other jurisdictions take the position
realm of his own’’ (Van Den Haag, 1971, p. 149). that employees should not lose basic rights of citi-
zenship (rights to privacy) when they walk through
an employer’s door (Jeffery, 2002a). This latter
Legal right to privacy position is held by France and has been repeated in
recent directives by the European Union (Jeffery,
Several countries have created or clarified a right to 2002a; Vigneau, 2002).
privacy related to human dignity as a fundamental More than 15 years ago, the European Union
right in their constitutions or laws. For example, UK issued Directive 95/46/EC which specifies mini-
enacted the Human Rights Act of 1998 which mum standards of data protection that must be
provides a person with ‘‘the right to have one’s granted by all member states and any other state
private life respected’’ (Jeffery, 2002b, p. 304). where data may go (Jeffery, 2002a). The directive
France refers to Article 8 of the European Con- requires that personal data be processed fairly and
vention on Human Rights for a right to personal lawfully, be obtained for a specific purpose, be
privacy (Vigneau, 2002). Historically, courts in the accurate, and be stored securely (Jeffery, 2002a).
USA have interpreted the existence of a right to Directive 95/46/EC has led to new legislation and
privacy stemming from nature and guaranteed from court interpretations which strengthen workplace
several constitutional amendments (freedom of privacy in France, UK, Spain, Germany, and Italy.
speech, freedom of religion, and freedom from Other entities, including the Organization for Eco-
unreasonable search and seizures) (DeCew, 1997). nomic Cooperation and Development, the Council
Whether there is a legal right to privacy varies of Europe, the International Labour Office, and the
greatly depending on the jurisdiction. Each country United Nations, have also have passed directives
512 Leigh A. Clark and Sherry J. Roberts

which protect an individual’s right to privacy Facebook provides users with some options to limit
(Jeffery, 2002a). The USA has few legal limitations who has access to their full profile. Even by selecting
on the use of personal data by employers when the most restrictive settings, the information dis-
making employment decisions (Finkin, 2002). See played may not be hard to access (Brandenburg,
Appendix A for a summary of workplace privacy 2008). A Facebook user has the ability to search and
laws in selected countries. access profiles more thoroughly. To ensure complete
It is unclear how privacy laws will be interpreted privacy, some SNS users create a public page using
when it comes to information an individual posts on their real name and a pseudo site for friends that
a SNS. Key legal questions are whether the indi- contains the pictures and dialogue intended for
vidual consented to the information being made them.
available to everyone, whether the information is Simms (1994) suggests that there is a difference
relevant to the employment decision, and whether between self-presentation and self-disclosure. Self-
the information falls within a protected realm of presentation is the ‘‘communication of self-data an
personal privacy even if a person makes the infor- individual might reveal to most any other person’’
mation available to many people or does not use (p. 317). Self-disclosure is the ‘‘explicit communi-
provided privacy settings. cation of self-data another would not have access to’’
Legally it is debated where the line is drawn (p. 317). Self-disclosure strengthens a relational
between an employer’s right to access information bond and includes sharing of emotional experiences
and an employee’s right to keep certain information (Simms, 1994). Given this difference, perhaps
private. Advances in technology make it possible to employers should have access only to self-presenta-
store lots of information about people and to access tion information and not to self-disclosure infor-
that information quickly, cheaply, and without mation. Young people may also see their profiles as
knowledge that such information has been accessed self-presentation tools rather than self-identity tools
(Miller and Weckert, 2000). For these reasons, many (Livingstone, 2008). Employers may be basing
urge that a right to privacy be clearly established decisions on information that shows poor judgment
(Stross, 2007). in what a young person decides to present to others
but may not represent whether the individual is of
good character or not.
Expectations of privacy Some argue that young people have a different
expectation of privacy than older employees.
Even if the information that an individual places on Livingstone (2008) disagrees, noting his research that
SNSs is personal or protected information, many teenagers want control over who has access to the
argue that a job applicant waives an expectation of information they post online (see also Thibodeau,
privacy to that information when he or she places it 2008). They want their friends to read their profiles
on a SNS (Introna and Pouloudi, 1999). Warren and but do not want their parents or employers snooping
Brandeis (1890) were clear that a person’s right to through their private space. Currently, social net-
privacy ceases once the individual publishes the working privacy settings are too limited to allow
information or consents to its release. Legally, the users to designate who is able to receive what type of
critical issue is whether a person ‘‘publishes’’ infor- information beyond allowing a ‘‘friend’’ into the site
mation about himself or herself when he or she (Livingstone, 2008). Facebook is tweaking its pri-
places it on a SNS. vacy settings to allow users to control who can view
A person’s Facebook site often has recent pho- each post (Noyes, 2009). Privacy advocates urge
tographs of the person with his or her family and Facebook to default to the highest privacy settings
friends, short blogs describing daily activities, and rather than defaulting to the lowest as it currently
online dialogue by family and friends. For example, does (Noyes, 2009).
as a friend of John’s site, one can view the dialogue There appears to be a disconnect between how
posted by John and his ‘‘friends.’’ When John up- members use their SNSs to communicate daily on a
dates his profile or posts a picture, all of John’s personal level with friends, and employers’ practice
friends are notified that an update has been made. to judge job applicants based on what is posted. The
 SNS Character Checks 513

online sites serve as a local gathering place where A stakeholder perspective of social responsibility
people run into each other, make plans, and share has been developed and is categorized as descriptive
news. Unlike a traditional bricks-and-mortar gath- or normative. The descriptive stakeholder theory
ering place, now conversations are immortalized, and examines how well an organization attends to the
it is very easy for others to be voyeurs and make needs and interests of various stakeholders. An
judgments based on social interactions. The purpose organization is viewed as being socially responsible
and activity taking place in the gathering places are the using this approach if it attends to the needs and
same as those that would occur in a bricks-and-mortar interests of at least half of its stakeholders (Jamali,
gathering place. The difference is that the digital 2008). The normative stakeholder approach focuses
information becomes permanent and employers are ‘‘on the ethical requirements that cement the rela-
being the voyeurs. Employers are taking in all kinds of tionship between business and society’’ (Jamali,
personal information, and making decisions based 2008, p. 219).
upon that information, without job applicants being Using the traditional view of the firm or a limited
aware. Employers are doing so because it is easy and stakeholder view of the firm, one can understand
cheap to do so. We contend that an employer would why an organization would conclude that online
not ask a human-resources staff member to follow a character checks are an acceptable business practice.
job candidate to a local restaurant or bar and sit in the From the employer’s position, there are many rea-
booth beside him or her for the purpose of over- sons why conducting an online background check is
hearing conversations and witnessing behavior for a in the interest of its shareholders. It provides an easy
character check. As long as the job candidate is in a way to gain a ‘‘character’’ assessment of candidates
public place, the employer could legally do so, but for without much hassle and allows the employer to
most this action would seem extreme and inappro- learn more about a candidate than is possible any
priate. Why do we not have a similar reaction when other way. Employers argue that they have a right
the same behavior occurs online? and need to protect themselves (i.e., shareholders)
Next, we discuss how this change in practice is from negligent hiring (Blackwell, 2004). Negligent
damaging to society and why employers need to hiring may occur if a company ‘‘fails to uncover an
curb this practice. applicant’s incompetence or unfitness by a diligent
search of references, criminal background or even
general background’’ (Edwards and Kleiner, 2002,
p. 137). Employers also state that using SNSs gives
Corporate social responsibility them a sense of the type of decisions job applicants
will make (Brandenburg, 2008).
The traditional view of a company is that the com- In the USA, many job applicants, having been
pany has a responsibility to make as much profit as it warned of the practice, believe it is acceptable for
can for its shareholders (Friedman, 1962; Grossman, employers to check up on them by conducting
2005; Jensen and Wygant, 1990). An alternative view Google searches or reviewing their SNS pages. In a
of the firm was suggested by Edward Freeman in 1984 University of Dayton study, 68% of students sur-
and termed the stakeholder approach. The stake- veyed did not believe it was unethical for employers
holder approach directs organizations to manage the to look at their SNSs (Read, 2007) despite many
interests of and acknowledge a duty of care to a range students reporting that they believed there is a strong
of stakeholders (Jamali, 2008). A stakeholder is ‘‘any line between personal and work life (Read, 2007). In
group or individual who can affect or is affected by the the authors’ study of students about their perceptions
achievement of the firm’s objectives’’ (Freeman, of an employer’s use of SNSs in the hiring process,
1984, p. 25). Stakeholders include the traditional only 33% of students thought that viewing SNSs was
ones – shareholders, customers, employees, and sup- unethical. Thirty-six percent thought the practice
pliers – but are expanded to include such groups as was ethical, while 32% were undecided about the
competitors, governmental entities, special interest practice. In follow-up interviews, some students
groups, media, and local community organizations expressed a view that what is online is public. They
(Freeman, 1984). argue that a job applicant should know by now not
514 Leigh A. Clark and Sherry J. Roberts

to post anything that the applicant does not want a responsibility, arguing that it is sound business practice
potential employer to see. Employers also share the for a business to appear socially responsible (Shaw,
view that job applicants need to clean up their sites 2009). Grossman (2005) explains that there is an
and remove anything that could be viewed nega- interconnectedness between social and financial per-
tively, stating that nothing is safe online. Some formance and true corporate social responsibility
employees are willing to give up some privacy to which is focused on the long term. Grossman (2005)
ensure that they are safe in the workplace, which defines true corporate social responsibility as ‘‘the
they believe is more likely if employers conduct implementation of sound management structures
thorough background checks (Blackwell, 2004). aimed at minimizing risk in areas such as governance,
We believe that these views of the firm ignore the environmental impact, social impact and workplace
impact that online character background checks have practices’’ (p. 582). Stated simply, companies should
on stakeholders not considered in this reasoning and ‘‘earn money in a moral and ethical way’’ (McCle-
on society at large. There are users of SNSs who are nahen, 2005, p. 64). For the purposes of this paper,
not yet of an age to apply for jobs. There are older corporate social responsibility is defined as ‘‘a business
stakeholders who have a different view of privacy and obligation to pursue policies, make decisions, and take
are not willing to concede that an employer can look. actions that benefit society’’ (Williams, 2010, p. 71).
Also not considered are the stronger views of privacy Currently, the virtual door is wide open and
held by global partners and employees. Some stake- companies are racing through. With the click of the
holders are in a better position to articulate their mouse, employers are conducting unfettered online
interests (Introna and Pouloudi, 1999) and others are character checks, creating a global norm that this
in a position of power imbalance and cannot honestly intrusion into one’s personal realm is acceptable.
represent their concerns. There is no time to wait for laws to be passed to curb
Blanket acceptance of this practice destroys the this practice. We believe that companies must act
utility and positive impact of this new communica- out of a higher responsibility to society, a global
tion medium. The practice sends a message to SNSs society, to preserve a natural right to personal pri-
users that you cannot communicate honestly online vacy. Bloustein (cited by Manning, 1997) stated that
for fear that your views will be judged and prevent invasions of privacy are wrong because ‘‘they are
you from getting a job. Currently, people use SNSs invasions of liberty as individuals to do as we will,’’
as they would a telephone or restaurant table. If a and ‘‘they undercut individuality and create a society
realm of personal privacy is not provided to this type of conventional, mediocre persons’’ (p. 818).
of communication, society will forever lose the
benefits that online communication provides. For
these reasons, a return to more conventional social Online character checks harm society
responsibility focused on what is in the best interest
of society is warranted. In the following section, we explore in greater detail
A broader view of the purpose of a company why conducting online character checks is damaging
gained momentum in the 1960s with the discussion to society in the following ways:
of corporate social responsibility (Wines, 2008).
Corporate social responsibility includes the claim • Online communities are a new way for peo-
that organizations should be not only concerned ple to interact, and this evolution of com-
about making a profit but also engaged in ‘‘actions munication should be protected;
that appear to further some good, beyond the • Areas of privacy should be shielded from
interests of the firm and that which is required by employer use;
law’’ (McWilliams et al., 2006, p. 1). • Online communication is permanent, and
Proponents of social responsibility justify this consideration of decisions years later may be
approach, explaining that businesses do not exist in harmful;
isolation, they receive benefits from society to exist, • It is good for society for there to remain
and they have an obligation to give back to society. boundaries between one’s work and personal
Some use a marketing approach to justify social life.
 SNS Character Checks 515

Online communities space online (Clemmitt, 2006). Online communities

also provide previous outcasts with a way to connect
Advances in technology have always changed how with friends who have similar interests from around
society communicates and interacts. With the crea- the world (Clemmitt, 2006). Socializing online may
tion of the Internet in the 1970s, ‘‘online socializing occur without initial judgments based on physical
has helped people worldwide link to others with appearance, disabilities or other stereotypes (Clem-
common interests for conversation and support’’ mitt, 2006).
(Colin, 2006, p. 625). A generation ago, people Despite these benefits, critics of online socializing
were more likely to remain in the same place and argue that online communication cannot ‘‘support
develop long-term friendships based on face-to-face human bonding the way real-world communities
contact. Now, many of us live in a city different do’’ (Clemmitt, 2006, quoting Clifford Stoll,
from where we grew up, and the number of tradi- p. 633). Stanford University’s Institute for the
tional friendships is down (Clemmitt, 2006). Quantitative Study of Society found that Internet
The use of the Internet is largely social (Clemmitt, use was directly related to social isolation (Clemmitt,
2006). A survey by the Pew Internet and American 2006). This study found that, for every hour spent
Life Project found that 34% of respondents said that online, a person spends 23.5 min less face to face
the Internet played an important role in a major with family and friends (Clemmitt, 2006). Online
decision they had made, meaning they sought advice socializing does not allow physical contact.
and support from other people online (Clemmitt, In contrast, some argue that online communication
2006). In the same survey, 84% of Internet users makes people more connected. ‘‘Tele-cocooning’’ is
reported joining a group or organization with an described as ‘‘carrying your friends around with you,
online presence. ‘‘Members of online groups also say using technology to be literally in contact with them
the Internet brings them into more contact with all the time’’ (Clemmitt, 2006, p. 634, quoting Mimi
people outside their social class or their racial or age Ito). For example, Sam posts comments throughout
group’’ (Clemmitt, 2006, p. 627). The Inter- the day on his Facebook wall such as: ‘‘Leaving for
net allows people to stay in touch with old friends kids’ soccer games. Dawson made a goal. Mom’s
and make new ones (Clemmitt, 2006). surgery went well.’’ An e-mail alert is sent to each of
Others argue that web-based socializing strength- Sam’s Facebook friends letting them know that Sam
ens online and offline relationships because it is has updated his wall. Friends can immediately read
facilitating a shift to new communication modes and post a return comment on Sam’s wall.
rather than causing a decrease in communication The invention of the telephone changed the
altogether (Clemmitt, 2006). A report by the Pew interaction between people drastically from face-
Internet and American Life Project and the Univer- to-face meetings and letter-writing to verbal com-
sity of Toronto discusses ‘‘a shift from neighborhood munication. Likewise, the Internet and wireless
and village-based groups to communities oriented communication is quickly modifying how humans
around geographically dispersed social networks’’ interact. There is no stopping this process, and there is
(Clemmitt, 2006, p. 634). The Pew Internet study a global interest in protecting some realm of privacy
found that people were in more contact with mem- within this communication medium. If employers
bers of their communities and social networks than continue to conduct online character checks, we
before, and those who e-mailed closest friends/family believe there will be a chilling effect on this type of
often were more likely to speak to them on the phone communication. People will modify what they post
as well. A University of Toronto study found that and write to conform to the expectations of
people who had high-speed Internet access knew employers, resulting in what Bloustein predicted:
more names of neighbors than those who were not Invasions of privacy will lead to a society of ‘‘con-
wired (Clemmitt, 2006). ventional, mediocre persons’’ (cited by Manning,
Online socializing is very important for teenagers 1997, p. 818). The chilling effect will render this form
because they need to have their own space, and of communication inferior, as people will be less
social networking provides them with their own honest and self-censor interactions.
516 Leigh A. Clark and Sherry J. Roberts

Privacy most consistent way to reach someone (Clemmitt,

2006). As the flood gates are open, for the good of
As a Facebook user, a person is able to search the society, we need to ensure that technology does not
profiles and invite acquaintances to become friends. strip away our privacy.
Facebook will search for potential friends based on Edwards and Kleiner (2002), who wrote an article
people a new user has e-mailed in the past. When a about conducting traditional reference checks in
new user reviews a suggested person to invite as a 2002, cautioned employers to realize ‘‘a social
friend, he or she can review the list of that person’s responsibility not to invade the privacy of an applicant
friends. When reviewing a friend of a friend’s list of more than necessary’’ (p. 146). They argued that
friends, a user is able to access portions of the friend employers have access to so much information, that
of a friend’s profile and the online communications job applicants do not know how much information is
that are posted on that person’s wall. A person is a being considered, and that employers need to limit
voyeur to various conversations to which he or she their consideration to only job-related information.
has no prior relationship. Friends can post pictures Miller and Weckert (2000) agree, stating that an
that may include other people without obtaining the employer is buying labor not things outside of work,
consent of the people in the picture. Quickly, a user and privacy is a moral right. Recently, some countries
loses control over the content that is posted online have passed laws to limit the information that may be
and made available to other people. considered by an employer about a job applicant
If we do not recognize a realm of privacy to (Jeffery, 2002a).
protect these conversations, we are opening
Pandora’s box to a different world with very little
privacy. It would be similar to allowing public Permanency of online communication
restaurants to place bugs under each table and
broadcast the hundreds of conversations that occur A major difference of online communication is that
daily on a public feed for employers to view. In it is a permanent type of communication. Even
online communities, people are having conversa- when a user deletes the information, it remains the
tions using a different technology that is easier for property of the SNS and can be recalled at a later
them to use. This new technology is also archived, time. Sometimes a user’s deleted profile is still
leaving a permanent digital trail. Our traditional retrievable upon an Internet search because it exists
conversations are rarely archived unless someone is somewhere online. In contrast, many laws protect
taping them, a practice often prohibited by law the interception of a telephone conversation by a
(Clemmitt, 2006). third party or government entity (Jeffrey, 2002a). It
Many users of SNSs communicate with a false sense is also a violation of most laws for a written letter to
that these online communities are safe (Clemmitt, be opened by someone other than the intended re-
2006). Others have a belief that the communication ceiver. Online communication is not afforded sim-
one conducts on the Internet is private since it is often ilar protection. Because of this permanency, a
done in one’s own home (New York Times, 2006). person’s mistakes or misjudgments cannot be re-
People use the Internet to check their financial tracted and may come back to haunt him or her.
records, research sensitive medical issues, and seek This permanency has a greater impact on minors,
advice on topics about which they would be ashamed who are known for making errors of judgment.
to ask a friend. Many teenagers post with a belief that Most countries protect minors from the decisions
no-one is watching. While teenage girls would be they make when it is believed they lack full mental
horrified if someone read their diary, they are posting capacity to assess the risks and consequences of their
so much more personal information online (Clem- actions. In some jurisdictions, minors who commit
mitt, 2006). crimes are prosecuted and punished in a separate
In the future, online communications and social juvenile system, and their records are sealed and
networking will become even more deeply rooted in purged when they reach the age of majority (Junger-
our lives. Social networking addresses may be the Tas and Decker, 2006).
 SNS Character Checks 517

New technologies are developing all the time and also not in society’s interest for employers to have
are creating a generational divide. Young adults and access to the missteps, questionable decisions, or
teenagers have grown up with technology and have nonmainstream ideologies of job candidates when
done most of their communication through com- making employment decisions. Allowing employers
puters. They have learned to multitask while com- access to this personal information may forever
municating with several people at the same time impact a person’s ability to get a job. It has yet to
(Sherman, 2008). Teenagers are quick to jump on- be established that judgments made based on
board with the new technology, making it hard for information from SNSs is related to job perfor-
legislators, parents, and others to stay on top of it mance.
(Clemmitt, 2006). Most cyber social network users
are aged between 12 and 25 years (Clemmitt, 2006).
Although SNSs may restrict accounts to users of Boundaries between work and private life
certain ages, often teenagers are allowed on the sites
legitimately; thirteen-year-olds are allowed an Currently, there is a debate about whether there still
account on MySpace. Since there is no good way to exists a boundary between work and an employee’s
verify a user’s identify or age, much younger users private life (Charlesworth, 2003). Such a boundary
are online. has not always existed. Conway (2003) notes that it
Eigthy-three percent of teenagers surveyed about was only with the Industrial Revolution and a change
MySpace said they believe it is safe (Clemmitt, in where work was conducted that such a wall
2006). College students also perceive SNSs, espe- formed. Prior to the Industrial Revolution, it was
cially Facebook, to be private (Peluchette and Karl, common for work to be conducted within a person’s
2008). However, a proposed Facebook change in home. The Industrial Revolution led to people
2006 made users more aware that whatever they put working within factories in cities, and the separation
online remains saved forever (Clemmitt, 2006). between work and one’s home life developed. Now,
Online information cannot be deleted permanently with the advancement of technology and the desire
and may remain accessible for years due to caching for flexibility (Cowan and Hoffman, 2007), there
(Oblinger and Hawkins, 2006). The information seems to be a blurring of the line, as people return to
one posts online is only as safe as your friends keep it working more at home (Duxbury and Higgins, 2001;
(Clemmitt, 2006). Johnson and Chadwick, 2009).
Teenagers and younger users sometimes use SNSs Manning (1997) argues that an employee has a
in a risky manner. However, it is important to right to liberty, and flowing from liberty is a right to
remember that a lot of online behavior was happening lead one’s life separate from work. This freedom is
anyway in teen hangouts but parents and employers required for private thoughts and development of
did not have access to it (Clemmitt, 2006). In 2006 a one’s self apart from his or her work identity
survey of US students explored what kind of infor- (Manning, 1997). Others strongly counter that work
mation they post on their SNS profiles (Peluchette is not a right but a privilege, and argue that an
and Karl, 2008). Results indicated that males were employer has a right to know whatever it can about
more likely to post self-promoting and risqué pictures a person to protect its property right in the business
or comments while females were more likely to post (Myatt, 2009; Sugarman, 2003). Myatt explains that
cute or romantic material. Teenagers expressed an employee is a direct representative of the com-
comfort with family, friends, and classmates seeing pany at all times, on and off work. Manning (1997)
their sites, but one in five did not want employers makes the point that a person does not have to work
seeing their sites. The study confirmed that students for an employer if he or she does not agree with the
did not realize the consequences of posting such employer’s hiring practices. Often a job applicant or
information online (Oblinger and Hawkins, 2006; employee is unaware that the employer is conduct-
Peluchette and Karl, 2008). ing an online background check and has made an
It is in the public interest to protect the privacy adverse decision based on that information. Man-
and actions of people in their social interactions. It is ning’s view of employment ignores an employee’s
518 Leigh A. Clark and Sherry J. Roberts

unique contribution and value to the organization people are reconnecting and maintaining daily
and seems to treat employees as a means to an end. contact with others across geographical distances.
Maintaining a separation between work and life is Society needs this communication medium but
something that brings value to the organization, the along with it realms of personal privacy must be
employee, and therefore society. For example, protected.
organizations that offer flexibility and work–life In addition to the potential of damaging an
balance options provide a mechanism to reduce evolving communication medium, the current
stress resulting from high work–life conflict (Eos practice of unfettered checks further destroys a line
LifeWork, 2007; Van Steenbergen and Ellemers, between what is appropriate for the work realm and
2009). It also makes employers more competitive in what should exist in one’s private realm. The current
attracting and retaining employees (Gregory and practice attacks a natural right of humans to have a
Milner, 2009; Hakala, 2008). personal space. The practice also has a greater impact
If the boundary between work and an employee’s on younger generations, as they are the most domi-
private life is destroyed, it becomes more likely that nant users of SNSs and are more likely as teenagers to
employees will modify their behavior for fear of use the sites for boasting, which may haunt them later
being judged by their employer. Employees may when they seek employment. These issues are
then express religious, political, and other views they amplified because currently our digital communica-
believe the employer deems acceptable, resulting in tions remain permanently in digital storage for people
masses of people who act in a cult-like fashion. This to judge years later. For these reasons, we call upon
type of groupthink can have dire consequences and employers to make a practice change that will benefit
eliminate originality and creativity (Dvorak, 2001; society by protecting this virtual communication
Whyte, 1989). space from their judgment.
While it is true that working for a particular em-
ployer is not a right, having the opportunity to work is
an economic necessity (Eos LifeWork, 2007). If the Guidance for socially responsible
boundary between work and family is eroded in part use of online background checks
based on this rapidly developing social norm, then
some may not be able to work because of the judg- Employers should cease the practice of informal,
ment of others (‘‘she is too conservative or too lib- online background checks of job applicants and take
eral’’; ‘‘she is a sinner for sexual preference’’; etc.). It is the necessary time to discuss and establish a policy to
important that the line between work and one’s pri- guide when and how an employer will use infor-
vate life be clearly marked and preserved (Stross, mation obtained from online sources in the future
2007). (Rifkin, 1991). The first step in developing a policy
is for an employer to establish that there is a link
between what is contained on applicants’ SNSs and
Summary of the potential harm to society on-the-job behavior (Peluchette and Karl, 2008). If
this link exists, then an employer should determine
The current practice of employers conducting for which jobs the employer has a legitimate business
online character checks that include reviewing interest in gathering this information (Bahls, 1990).
information posted on job applicants’ SNSs is Sugarman (2003) provides a more detailed discussion
harmful to society because it allows employers to be of what a legitimate business interest may include.
undetectable voyeurs to very personal information For those jobs for which there is a legitimate business
and make employment decisions based on that interest, employers should determine what impact
information. The acceptance of this practice would online background checks have on the trust forma-
have a chilling effect and permanently render a tion between the employer and the future employee.
promising communication medium inferior and The employer should also weigh the benefits gained
dangerous for people to use. We believe that society against the potential negative consequences from
needs SNSs because they are the next step in human further erosion of the boundary between a person’s
social interaction. Currently, within these sites, private and work life.
 SNS Character Checks 519

For those jobs for which there is a legitimate Conclusions

interest to consider the information found on a SNS
that outweighs the negative consequences to society There appears to be a disconnect between how users
at large, the employer should establish guidelines to of SNSs view the purpose and utility of SNSs and
be sure that the employer is not seeking or using how employers view the sites. Users of SNSs use
information based on protected class membership them mainly for social interaction, whereas
(Greenwald, 2008) or in violation of a law or employers use a site to gather character information
regulation. The employer should weigh whether it is about job candidates without the applicants ever
better not to look in order to prevent the inference knowing what information was considered. SNSs
that a protected characteristic was illegally consid- serve as a local gathering place, albeit online, where
ered (Greenwald, 2008). people run into each other, make plans, and share
Guidance provided to employers on how to news. Unlike a traditional bricks-and-mortar gath-
conduct and use information from traditional back- ering place, online conversations are immortalized in
ground checks applies as well to informal online the online gathering place, and others (friends and
background checks. For example, Bahls (1990, strangers) can be voyeurs and listen in. The purpose
pp. 30–31) provides the following guidance: of and activity taking place in these gathering places
are the same, but the permanency and judgment of
• Do not conduct a check unless the informa- the activities by employers are something very dif-
tion is job related and the employer can jus- ferent.
tify a legitimate reason in court; We call upon employers to take a moment to
• Provide fair notice to the employee prior to consider the impact these easy, informal background
the background check; checks have on society. The greatest impact is the
• Make sure the information obtained is accu- chilling effect this practice will have on the quality of
rate, complete, and relevant; human interaction that will occur online. Rather
• Keep promises of confidentiality; than expecting users of SNSs to change their
• Restrict in-house access to information to behavior by not posting anything they do not want
those with legitimate interest in the informa- an employer to view, we argue that it is better for
tion; society for employers not to enter an employee’s
• Discard outdated information; virtual front door.
• Avoid intrusive data collection.
Charlesworth (2003, p. 222) provides similar
guidance to employers who are considering a mea- Note
sure that intrudes on an employee’s privacy: 1
The afore-mentioned authors’ study was approved
• Have a legitimate purpose for the intrusion; by the authors’ university’s Office of Compliance in
• Ensure that the intrusion is offset by a great- accordance with the ethical standards laid down in the
er utility to the employer or society; 1964 Declaration of Helsinki. All respondents in the
study provided their informed consent prior to begin-
• Use the least intrusive measure possible that
ning the survey and identifying information was not
achieves the desired outcome; collected.
• Ensure that the measure is fair and lawful;
• Apply the measure equally to similarly situ-
ated job applicants or employees;
• Be transparent in your use of the measure Appendix A
and the process the employer used to devel-
op the measure. See Table II.
 TABLE II
Workplace privacy orientation and laws in selected countries
520

Country Workplace privacy orientation and laws

Brazil (Filho and Leonel de An employee sells his work time to the employer.
Rezende Alvim, 2002) The legal system tries to balance the employee’s private life and private correspondence with an employer’s
private property rights and a manager’s right to manage. Courts have recognized that employees have a
private sphere that is protected from employer intrusion. Employers are required to provide notice before
any workplace surveillance occurs. When it comes to personal data, an employee should be able to decide
what happens to it (self-determination orientation).
In 1998, a provision was added to the Constitution which protects workers from automation. It called for
the development of tools to achieve a balance between workers’ productivity and the automation of work.
Courts have found that e-mails, even when sent from a company’s computer, are private correspondence.
Courts have made decisions based on an employer’s ‘‘(a) respect for the worker’s dignity, and (b) con-
sistency between surveillance procedures and their stated purpose’’ (p. 290).
UK (Jeffery, 2002b) There are several recent laws in UK that address the surveillance of workers and the processing of personal
data. The Data Protection Act 1998 was passed to implement European Council directive 95/46/EC. The
Human Rights Act 1998 includes ‘‘the right to have one’s private life respected’’ (p. 304). The Regulation
of Investigatory Powers Act 2000 provides a legal framework for all interceptions of communications on
both public and private telecommunications systems (p. 305) and requires that both parties to the com-
munication consent to the communication being intercepted by another party. Laws have required an
employee’s notice, consent, and fair treatment when specifying what behavior is legal. In summary, these
laws required an employee’s notice, consent, and fair treatment prior to processing of personal data.
These laws are just now being implemented and interpreted by the courts. It is likely that, when in doubt,
the courts will interpret the law to provide for individual privacy. Common law has also recognized a right
Leigh A. Clark and Sherry J. Roberts

to personal privacy. Initially the laws seemed to weigh in favor of employees and protect personal data from
employee surveillance. Recently, laws seem to have been in favor of employers.
Germany (Reinhard, 2002) Germany has a mixture of laws that provide some workplace privacy and are in compliance with Directive
95/46/EC. Employers have the right to collect some personal data on employees. Surveillance without an
employee being given notice can only occur in rare circumstances.
Courts have ruled that ‘‘the protection of personal data is a fundamental right under the Constitution’’
(p. 393). The collection of personal data must be authorized by law or when a person consents.
 TABLE II
continued

Country Workplace privacy orientation and laws

Spain (Arranda, 2002) A 1980s law established a right of the employer to monitor the employee regardless of the methods used.
Judicial interpretations of this law have limited the degree to which an employer may monitor. The
monitoring must relate to employment. The employee must be informed of the monitoring before it
occurs. The courts look to company rules for guidance on whether the monitoring is appropriate.
Monitoring must be justifiable and related to its purpose.
The Spanish Constitution of 1978 included Article 18.4, which states that ‘‘the law shall limit the use of
computers in order to safeguard the honour and privacy of all its citizens, whether related to the individual
or the family, and ensure that they may fully exercise their rights’’ (p. 449). In 1999, a new law
(Ley Orgánica de Protección de Datos de Carácter Personal, referred to as LOPDCP) provided protection
of personal data and implemented Directive 95/46/EC. The LOPDCP has two main requirements. First,
personal data sought by an employer must have a legitimate purpose. Second, the data sought must be
relevant, appropriate, and not excessive with regards to that purpose. In determining whether the purpose
is legitimate, the consideration of the personal data cannot lead to unlawful discrimination based on sex,
race, ideology, or union membership. Sensitive personal data requires the consent of the data subject prior
to its processing.
USA (Finkin, 2002) In the USA, the employment-at-will doctrine is strong. Unless there is a contract stating otherwise, the
employment-at-will doctrine states that an employer or employee may end the employment relationship
for any reason at any time. Very little employee privacy protection exists in federal and state legal codes.
SNS Character Checks

Likewise, there is very little workplace privacy protection afforded in common law.
The Electronic Communications Privacy Act (1968) provides some protection against wire taps and the
release of stored communications, but what is protected is interpreted narrowly.
Common law protection against wrongful invasion of privacy requires that a person has a reasonable
expectation of privacy and that the nature of the invasion of privacy to a reasonable person is ‘‘highly
offensive.’’
In contrast to laws in other countries, recent state legislation has afforded more protection to employers
when providing reference information about a former employee rather than limiting what information an
employer may consider.
521
 TABLE II
continued
522

Country Workplace privacy orientation and laws

France (Vigneau, 2002) Law and culture in France recognize a sphere of personal privacy. In French law, there are three principles
that guide workplace privacy. The principle of transparency requires that prior notice be provided to an
employee before workplace surveillance or personal data is processed. The principle of proportionality
requires that the means used to gather the information is balanced to the depth or type of information
needed. The third principle of relevance requires the employer to justify the need for the information. An
employer must notify an employee that personal data will be collected. The employee can challenge its use
Article L.121-6 of the French Labor Code requires that ‘‘information sought from job applicants and
employees must aim exclusively at evaluating their professional abilities’’ (p. 354). Recent decision by the
highest appeal court in France found that an employer did not have the right to open an employee’s private
e-mail even though it was retrieved using the employer’s computer during work hours. An employer can
monitor work activities of employees only to the extent that such surveillance does not interfere with the
employee’s right to privacy.
Article 9 of the French Civil Code and Article 8 of the European Convention on Human Rights clarify
that an individual has a right to personal privacy. French law also follows European Community Directive
95/46/EC.
Italy (Faleri, 2002) Italian law seems to ensure a balance between the employer and the employee in contrast to recognizing an
employee’s right to privacy. The law recognizes an employee’s ‘‘right to data self-determination’’ (p. 426).
Changes were made to Italian law to comply with Directive 95/46/EC. Sensitive data requires a data
subject’s consent before it can be processed, and the processing must be authorized by the Guarantor. The
Guarantor has provided authorization for many types of data processing through the issuance of a list.
Ordinary data does not require the consent of the data subject.
Leigh A. Clark and Sherry J. Roberts

An employee’s right to privacy is ‘‘limited by the Freedom of Economic Initiative, as established by Article
41 of the Italian Constitution’’ (p. 414). This constitutional provision specifies that any law cannot impose
excessive bureaucracy that would impact an employer’s ability to run the business efficiently.
 SNS Character Checks 523

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