Free Speech & What You Can Learn

Question:  You’re a recruiter.  You have a promising candidate who has successfully been through a couple of interviews.  You sit down and google his name.  The results show a picture of a white supremacist rally with his face in the crowd.  What do you do?

Much has been said over the past ten days about free speech in the workplace.  While there have been many reminders that free speech doesn’t really extend to the private workplace, an undercurrent is stirring.  The complaint has been that people should be able to say whatever they want without any consequences to their way of life.  If it is unfair for someone to get fired after supporting a white supremacist rally, frankly, my dear, I don’t give a damn.

Today, we are blessed and cursed that the world has become more transparent.  This is all thanks to social media and a 24/7 news cycle.  Depending on the privacy settings, we can see what people were up to ten years ago.  We can look at their Twitter page to see their “off the cuff” statements about the world, their coffee selections, and frustrations with a particular airline.  All of this is good information for employers.  Imagine these typical concerns when hiring that can be answered by media:

  • How will this candidate respond to stress? A rant 18 months ago about a delayed flight that when on for six tweets each with escalating hatred could be a good indicator.
  • Will this candidate be a good representative of our company? An Instagram post of her doing a keg stand in a company t-shirt could be okay for a beer distributor, not so great for a Mothers Against Drunk Driving chapter.
  • Will this candidate be a positive influence? Chronically negative Facebook posts complaining about everything from her car, her roommate, her dog, her etc. could all indicate a Negative Nelly who could become a toxic employee.
  • Is this candidate passionate about the job? Tweets sharing articles about her job and what that job will look like in the future are excellent indicators of passion.

All of this gives employers a more complete picture of a candidate.  Social media and news websites can share a great deal of information that can reduce an employer’s risk too.  Googling a candidate can show you postings of violence or discriminatory comments that every employer wants to avoid.  It can show intolerance that when brought into the workplace can create liability under discrimination statutes or other liability like negligent hiring.

Here’s what I recommend all employers do – google candidates.  Look at what you can.  (Don’t breach any privacy settings though.)  When you do it, follow these steps:

  1. Decide what will disqualify a candidate well in advance. At the initial intake interview, ask the hiring manager what on social media or in the news would disqualify the candidate.  You can have standard disqualifiers, like violence, bad grammar, bigotry, etc., but there may be a few disqualifiers for a specific job.
  2. Make HR do it. HR is particularly aware of unconscious bias and may not be a decision-maker.  For these reasons, HR can compare the disqualifier list to what they find in a google search in as neutral way as possible.
  3. Wait as late in the process as you can. Googling all 600 candidates for a particular position is a waste of time.  Google when you’re down to your last few candidates.
  4. Ask the candidate. I know this may be shocking to some, but you should ask a candidate about what you find.  You could have the wrong person.  The candidate might have a good explanation.  Even if it is something for which no reasonable excuse exists (e.g. bigotry), by asking you get the much needed feedback to the candidate.  This does not have to be confrontational.  Just ask for their side of the story. On occasion, giving someone a second chance may be appropriate, but you’ll never know unless you ask.

If the “fictional” recruiter above discovered a picture of a candidate wielding a tiki torch at a white supremacist rally, the recruiter should feel comfortable moving on to another candidate.  Employment at-will has given employers’ the ability to move on.  They should use it.

I will fight for anyone’s right to free speech. Discourse is important to our way of life. That said, I will also fight for a company’s right to have consequences for that speech.  Employment and labor law have defined the limits of free speech in the workplace (talking about working conditions, wages, etc.).  While it is important to have all kinds of viewpoints in the workplace, no workplace should have to tolerate hatred, bigotry, or other sentiments that one gender or race is superior.  Period.

 

h/t to Ali McGinty for her review, smarts & co-teaching!
Photo by Vinicius Amano on Unsplash

 

 

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