As we all know, social media has made it easier for employers to search for and obtain information about employees. And, sometimes, employees put the information right in your lap.
Craigslist recently announced that it was shutting down its “adult services” section. Many objected to what was perceived to be a form of censorship, including a blogger named Melissa Petro who posted her own “thoughts from a former Craigslist sex worker” on the Huffington Post, in which she wrote: “From October 2006 to January 2007 I accepted money in exchange for sexual services I provided to men I met online in which was then called the ‘erotic services’ section of Craigslist.org.” Such an admission from a participant on Craigslist wouldn’t be all that surprising, I suppose, except for the fact that Ms. Petro is currently an elementary school teacher in the Bronx, New York.
The news media and parents of school-aged children have grabbed hold of this story and it has exploded. The issue does not appear to be about whether prostitution is wrong, but whether Ms. Petro should be able to continue in her position as an elementary school teacher. According to Ms. Petro’s post, she no longer engages in such “activities”. So there are some who have argued that her prior “activities” have no bearing on her ability to perform her job as a school teacher, while others argue that a former prostitute is not someone who should be teaching children. Ms. Petro has been placed on administrative duty by her employer.
There are so many sexy issues here. The school apparently did not seek out this prior background information about Ms. Petro; rather, she openly posted her background for the world to see. In addition, Ms. Petro’s posts arguably brought her current employment situation into the discussion when she expressed her hope to “never again make the choice to trade sex for cash even as I risk my current job and social standing to speak out for an individual’s right to do so,” and when she apparently spoke out later on a video and compared her teaching career to having sex with her boyfriend.
Which prompted the question of whether an employer is limited in taking adverse action against an employee because of prior criminal offenses that are discovered through social media? The answer is generally, of course, “it depends.” Many states have statutes which preclude an employee from inquiring about or taking any action with regard to prior convictions (prior arrests are typically a forbidden topic completely). New York is one of those states.
By way of example, New York’s Correction Law provides that no application for employment can be denied, and no current employment can be acted upon adversely, because the individual was previously convicted of one or more crimes unless (1) you can demonstrate a “direct relationship” between the specific employment position sought or held and the prior criminal offense, or (2) the acceptance of or continuation of employment would pose an unreasonable risk to property or to the public’s welfare or safety. New York law also provides 8 specific factors that must be considered when making such an employment-related determination, and requires, among other things, that any individual previously convicted of a criminal offense be provided, upon request, a written statement setting for the reason for any denial of employment.
Employer Take Away: What should you as an employer take away from this development? Notwithstanding the salacious facts presented in Ms. Petro’s case, and the sympathy she has perhaps garnered with those who applaud her for being open and honest, this case offers a good lesson to you:
(1) As suggested in prior posts, strongly consider the extent to which you truly want to (and need to) obtain information about potential and current employees from social networking sites and other forms of social media. If you decide you do, take appropriate steps to insulate the unwanted information from the decision makers.
(2) To the extent you obtain information about an applicant or current employee, such as prior criminal convictions, make sure that you consider the legal requirements in your state for basing employment-related decisions on that information.
(3) Don’t forget that social media can be wrong. While much of Ms. Petro’s circumstances appears to have come directly from her own keyboard and mouth, it is important to confirm the source of your information, and limit discussions about the information to those within your company who need to know.