Dive Brief:

• Social media screening is increasingly a part of the recruitment process, but employers must be careful not to allow hiring managers to do such screenings without proper guidance or a framework, Eric B. Meyer, partner at FisherBroyles LLP and author of The Employer Handbook blog, said during a session at EEOC's EXCEL Training Conference.
• Meyer provided a few guidelines for hiring managers. A screener of social media content should not be the same person making the final decision, he said, and they should stick to a clear list of red flags to look out for, such as hateful speech. Generally, he suggested screening once candidates reach the final stages to ease the work.
• "Freedom of speech doesn't guarantee you a job," Meyer reminded the audience. But managers should do their due diligence so they don't opt away from an applicant for other factors, including protected classes such as race or religion.

Dive Insight:

Cases in which employees are fired for social media use have attracted quite a bit of news attention as of late, perhaps the most notable example being that of Roseanne Barr and the cancellation of her television show, Roseanne, after Barr sent what was widely considered a racist tweet.

Private employers usually have the right to fire employees for behavior outside the job that comes to their attention, barring any state or local off-duty conduct protections (often referred to as "smoker's rights laws" or "gun owner's rights laws"). And thanks to social media, outside behavior can come to an employer's attention with unprecedented speed, Jon Hyman, partner at Meyers Roman Friedberg and Lewis, previously told HR Dive.

"The workplace essentially now has extended beyond the walls of the workplace," he said. Employers are within their right to respond if an employee is engaging in behavior that the employer considers distasteful, including violence, hate speech or vulgarity.

In recent years, private employers also had to consider protected concerted speech when weighing social media postings. As recently as 2017, the National Labor Relations Board won a case in which it claimed that a vulgar Facebook post for which an employee was fired could be considered protected concerted speech due to a mention of an upcoming union election. The NLRB gained a Republican majority at the end of 2017, however, prompting some experts to say that a "return to common sense" may soon be underway that could walk back some of the board's decisions that were seen as more extreme.