Social Media in the Workplace: Hoaxes, Lies and a President’s Unconstitutional Behavior

Social-Media-in-the-Workplace-Hoaxes-Lies-and-a-Presidents-Unconstitutional-Behavior-V1 copy

A federal appeals court has declared that President Obama acted in violation of the U.S. Constitution.  Before I get to that case, and why it involves social media in the workplace, let’s look at a hoax and at liars using social media.

Lying on Your Resume Will End Up Hurting You (duh!)

And Will Be A Gift To Your Employer (huh?)

Let’s focus for a minute on Mantei Te’o.  During his interview with Katie Couric, Mantei Te’o said he was a victim of an elaborate hoax, and once he learned of the hoax, he decided to play along with it for a while.  Whether you believe him or not, there are many lessons employers and employees can learn from this situation.  One initial question:  how did this hoax last for so long?  Apparently, Te’o was the victim of online catfishing, where the person who perpetrated the hoax “cyber-stalked” a real woman, and used her real photos to create the fictitious girlfriend known as Lennay Kekua.  The relative ease of creating this entirely new identity by using someone’s real information should raise red flags for anyone who posts on social media.  These red flags are better analyzed by true experts in social media security, like fellow Windmill Networking contributor Christopher Budd, and not by me.

For this post on social media in the workplace, let’s shift the scenario a bit.  Let’s say that Mantei Te’o is one of your employees or one of your co-workers.  And, instead of a hoax or lie regarding a non-existent girlfriend, he lied on his resume, or on LinkedIn, about his professional background or professional experience.  As an employer, or as a co-worker, what, if anything, would you do when you discovered his lie?  Would your answer change if he had been an outstanding employee for 10 years before you learned he really did not graduate with a degree from Notre Dame, even though it’s on his resume?  A lie is a lie, after all, even after 10 years pass, just ask Lance Armstrong.

According to Forensic Psychology, 31% of survey respondents admitted to lying on a resume.  Another survey suggest that the number is closer to 43%.   Maybe you have a little lie or exaggeration in your own resume.  Perhaps these folks do not think their lie will be discovered.  Or, perhaps these folks believe that, once they get hired, they will become too valuable to fire.  (But take a look at these executives who were caught having lied on their resumes).  The reality is, however, that an employer can lawfully terminate an employee who has lied on a job application, resume, or on social media like LinkedIn about their professional past.  It does not really matter what the lie is.  Again, a lie is a lie.  And there is no law prohibiting an employer from terminating a liar.  There may be other reasons to not fire an employee for lying on a resume, but a violation of the law is not one of them.

Additionally, an unintended consequence of lying on a resume or on social media, is that it could sink an employee’s claim for wrongful termination or discrimination.  For example, if an employee truly believes he was fired due to his race, his claim will be severely undermined when the employer plainly explains that the firing had nothing to do with his race, but had everything to do with his lies about his prior job experience.  That wrongful termination lawsuit is likely over before it really starts.

But, getting hired based on false credentials in the first place may be more difficult than ever in the age of social media.  As I wrote about last year when discussing recruiters and hiring managers using social media, 91% of the recruiters and hiring managers surveyed by Reppler stated they have used social networking sites to screen prospective employees.  And, 69% of these recruiters and hiring managers revealed that they have denied employment to job applicants due to something they found on an applicant’s social networking site.  Recruiters and hiring managers are becoming more and more savvy and meticulous in scouring social media sites to screen potential employees.  Social media has opened up new ways to fact-check, and job applicants should not have confidence that their lie will go undetected.

President Obama’s Unconstitutional Acts

On January 25, 2013, in the case Noel Canning v. NLRB, the federal Court Appeals for the D.C. Circuit issued a significant ruling declaring that President Obama violated the U.S. Constitution in 2012.  Without going into too much “legalese,” the Court found that President Obama improperly appointed three members to the National Labor Relations Board (NLRB).  If you’ve been reading my posts here, you already know why the NLRB is important regarding social media and employment law.  Now, because of the appellate court decision, the validity of every single decision rendered by the NLRB in 2012 is in question.  If this case is not overturned if/when appealed to the U.S. Supreme Court, then all of the decisions made by the Board will be thrown out.  That includes the many NLRB decisions finding that employers had violated an employee’s right to post comments on social media sites, and decisions finding unlawful various employer’s social media in the workplace policies.  While this case winds its way through the court process, the sole remaining member of the NLRB has vowed to continue to operate “business as usual.”  A strangely defiant response considering he, alone, cannot possibly achieve the quorum necessary for issuing proper decisions.

As a practical matter, employers should still take care in drafting policies and may still want to follow the guidelines issued by the NLRB’s Acting General Counsel.  Those guidelines are still valid and valuable.  Similarly, employers should also remain cautious when conducting a “Facebook firing” since the NLRB is certainly not the only forum in which employee complaints can be litigated.  Indeed, while the NLRB may be in limbo, the Equal Employment Opportunity Commission, and the various state agencies, like the California Department of Fair Employment and Housing, remain active in handling charges of wrongful termination, discrimination, harassment and retaliation.

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

James Wu
James Y. Wu contributes a monthly column on Social Media and Employment Law. For over 15 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University. +James Wu
James Wu
OptinMonster

Please Leave a Comment!