By Mark F. Kluger and William H. Healey
Tiana Dalichov recently got her alter ego fired because of the content of her podcast,Unapologetic. In a February 26, 2018 episode, Tiana told her listeners that science has proven that some races are more intelligent than others. Good thing she’s not a science teacher, or is it? Tiana Dalichov is a pseudonym for Dayanna Volitich, a middle schoolsocial studies teacher in Florida. During one episode, in response to a guest’s suggestion that white supremacists should hide their views to infiltrate public schools, Volitich responded that she had done so. When the school district discovered her body of work, she resigned rather than face termination but not before offering her 3 pronged defense: (1) she used exaggeration and satire to make her points, (2) the podcast and similar Twitter account were a “hobby” engaged in “on my personal time,” and (3) “the views Tiana Dalichov espouses do not pervade my….teaching of social studies.” Good to know. We have heard the I was only kidding and I didn’t do it on your time excuses before, but never it was her not me. That’s a new one.
The number of employers viewing employees’ social media has been steadily increasing. In a recent CareerBuilder survey, 50% of the 2,300 HR professionals surveyed indicated that they check the social media of current employees, and a third of them said they have fired or disciplined employees based on the content. Just last week, a Sacramento hospital fired a nurse for her Facebook posts regarding the recent shooting death of an unarmed man. She wrote on her personal Facebook account, Can we protest the deaths of all the people shot by black people too. In another, she wrote that the dead man deserved it for being stupid. Following her swift termination, the hospital wrote that it does not tolerate hate or discrimination.
Private employers are not obligated to hire or retain employees whose personal views they do not share or which they believe might negatively impact the reputation of the enterprise. While many employers adopted social media policies in recent years, the NLRB cases against those who have terminated employees for derogatory posts about terms and conditions of employment slowed the rollout of such policies. But now we have a good handle on the limited topics that are protected when discussed online. As a result, employers’ trolling of social media has resumed largely unfettered.
Employment lawyers have often counselled against viewing the social media of candidates because of the potential to discover lifestyle information that could be used by a spurned candidate to claim discrimination in a failure to hire case. Yet, the CareerBuilder survey also found that 70% of employers now use social media in the hiring process proving that nobody cares what the heck we think. Interestingly, HR professionals said that among those reasons that they chose not to hire because of social media content, the following predominated:
- 39% -provocative videos/photos
- 38% -too much drinking/drug use
- 32% -racist or sexist comments
- 30% -bad mouthing of prior employer
Before you tell your employment age children to block all access to their social media though, you should know that 57% of the hiring managers surveyed said that they were less likely to interview a candidate who could not be found on social media. We’re not sure why the lack of a social media presence is a bad thing, but apparently it’s not good.
Finally, in stark contrast to the teacher terminated for her racist views, kidding or not, sometimes teachers can be fired for trying to do the right thing on social media. Last year, hoping for a day off, a student Tweeted, @FCPSMaryland close school tammarow PLEASE. Seeing this as a teachable moment, the social media manager for the Frederick County Maryland public schools Tweeted back: But then how would you learn to spell tomorrow? For her effort, she was required to apologize to the student and then terminated to which we say, don’t wurry, tammarow is another dae.