Are Employees' Rights being Violated?
The frequent use of technology in the workplace is undeniable as is the monitoring of employee postings in hiring and performance evaluation by employers. Social media sites and accounts can contain some very personal and intimate information about people. Consequently, employers, employees, job applicants, as well as the legal system, are confronting with ever-increasing frequency the growth and proliferation of social media, and the challenges and difficulties presented by the use of social media and the modern-day workplace. The extensive use of social media in the workplace raises serious moral and ethical concerns. These concerns can be addressed from a philosophical point of view.
In examining the consequences of employer social media policies, as required by the Utilitarian ethical theory, and measuring and weighing these consequences, the result appears to be that there are more good consequences than bad in allowing the employer to make in a legal manner employment determinations based on employee and job applicant’s postings and communications on social media; and thus pursuant to Utilitarianism social media-based decision-making in employment is moral.
Yet in ethically weighing the advantages and disadvantages of accessing and using social media information to make job determinations, employers must be very careful to act in a non-discriminatory manner; otherwise, the “bad” consequences, especially in the form of legal liability, will prevail over the “good”. However, regardless of any Utilitarian moral conclusion based on a perceived “greater good,” many ethicists are troubled by a teleological business-oriented approach to social media policies, standards, and practices in employment. One of these “academics,” at least historically, would be Immanuel Kant.
Kant argues against Utilitarianism. Disregard consequences, declared Kant, and instead focus on the form of an action in determining its morality. For Kant, the key to morality is applying a formal test to the action itself. This formal test he called the Categorical Imperative. “Categorical” meaning that this ethical principle is the supreme and absolute and true test to morality; and “imperative” meaning that at times one must command oneself to be moral and do the right thing, even and especially when one’s self-interest may be contravened by acting “rightly.”
As a general moral rule, for an employer to intrude into an employee’s or job applicant’s private life on social media without permission or in a surreptitious or coercive manner would be immoral under Kantian ethics. An employer’s unjustified, arbitrary, and invasive investigation of social media content without authority or consent is an affront to a person’s dignity, security, and privacy and thus would be immoral pursuant to Kantian ethics.
The use social media in making hiring and employment determinations, when social media communication or content is not relevant to the employee’s ability to do the job, would be disrespectful, demeaning, and unfair to job applicants and employees, again, regardless of consent. The danger of ‘social media background checks’ is that personal information presented out of context or inaccurately may lead employers to judge candidates unfairly without their knowledge or without providing an opportunity for rebuttal. Worse yet, the surreptitious quality of the information search may be a backdoor to illegal discrimination.
However, if the requirements of a particular job or business are the controlling criteria, and the information online is readily accessible by the public, then social media can be construed as a legitimate factor in business determinations to a rational person. That is, if the job applicant’s or employee’s information on social media is publicly available and not protected by passwords and login profiles, then morally the employer can research and use the information, though obviously not in a discriminatory or arbitrary fashion. If the employer is harmed by the employee’s social media posting which harms the company, or an applicant’s posting reveals a lack of qualification or character on the part of the applicant, one can make a reasoned argument that social media employment decisions sanctioning employees are not arbitrary, irrational, or unfair, and thus not immoral according to Kantian ethics.
It is reasonable for the rational person to expect that people, including employers, would view publicly available social media information, and also reasonable that the employers would use the information for legitimate business reasons, as employers would with traditional “background checks.” One can further argue that when an image for the business is at stake, it would be disrespectful to the employer by not taking into account its legitimate business needs and thereby encroaching on the employer’s justifiable autonomy to hire, staff, and manage its business. Social media postings thus can be a legitimate factor in hiring employees that one must be cognizant of – ethically as well as legally. Therefore, initially, based on a Kantian ethical analysis, one would say that it is not morally wrong to differentiate and to make job determinations in employment based on social media information.
However, in order to treat the employee with dignity and respect, the employer must inform the employee that it has secured information from social media that will be used in an employment determination, inform the employee of the content, and then let the employee explain the situation and correct any information which is inaccurate. To allow the employee to “correct the record” is to treat the employee with dignity and respect, which is the way any rational person would want to be treated.
Balancing the legitimate interests of employers and employees and job applicants, as well as drawing the proper ethical boundary between moral and immoral conduct regarding social media use is a very difficult undertaking. Employers have legitimate business interests to manage their companies; and employees have legitimate interests to have private off-duty activities. For the employer, hiring people and keeping qualified employees who obey the employer’s legitimate social media policies certainly can be said to advance the self-interest of the employer, which would make the practice moral pursuant to Ethical Egoism. Not hiring people or discharging employees who violate proper company policies and harm the company surely can be construed as a societal norm, which would make the practice moral pursuant to Ethical Relativism.
Furthermore, an argument can be made that legitimate and fair employer social media policies and practices achieve more good consequences than bad, which would make social media-based job determinations moral pursuant to Utilitarianism. Finally, for Kantian ethics, there quite rightly are concerns that an employer’s intruding into an employee’s or applicant’s personal life, as reflected on social media, could impinge on the employee’s freedom, privacy, and dignity and thus be immoral.
However, by focusing on the employer and the essential business needs of the employer to hire and to staff its business with personnel who will obey company policy and not harm the company by social media postings, one can make a reasoned argument that, assuming consent is given or the information is truly public, making job determinations based on social media is fair and moral pursuant to Kantian ethics. So, ethically, one can conclude that social media monitoring, investigation, and job decision-making by the employer generally is moral if the information is directly related to job performance and consent is obtained or the information is truly public (and of course the employer’s policies and practices are otherwise legal).
Blog posted by Dr. Steven Mintz, aka Ethics Sage, on July 23, 2015. Professor Mintz is on the faculty of the Orfalea College of Business at Cal Poly San Luis Obispo. He also blogs at: www.ethicssage.com.