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300 | Recruitment and Selection Law for Local Government Employers
8.5.1.4 An Applicant’s Opinions about Politics and Other Matters of Public Concern
The sheer variety of material that an Internet search might turn up makes it difficult to generalize about the legal dangers such material poses for employers. There is no question, however, that a private employer could refuse to hire an applicant because the persons charged with hiring did not like the contents of that applicant’s online communications, whether the subject matter was personal or political. That is because private employers have no duty to respect the free speech rights of their applicants and employees. Public employers, on the other hand, must tread very carefully if they propose to use an applicant’s online expression as a basis for rejecting the person for employment. That is because the First Amendment to the U.S. Constitution prohibits the government from abridging citizens’ rights to freedom of expression. In this respect, electronic expression is no different from speech voiced out loud or from communication in the form of printed words or photographs in a newspaper. The same First Amendment tests apply to all public applicant and public employee speech and communication.
Thus, whether a North Carolina local government employer can refuse to hire an applicant because of an Internet posting depends on the nature of the applicant’s posting. Only speech on matters of public concern is constitutionally protected.94 If the applicant’s Internet posting or speech
uses alcohol in his or her private life. Applicants could claim that the employer refused to hire them because it perceived them as alcoholics based on Facebook postings about their behavior while drinking alcohol. Alcoholism is a covered disability under the ADA. See 42 U.S.C. § 12114(c). The ADA also protects applicants and employees whom an employer regards as having a disability even when they do not. See 42 U.S.C. § 12112(a).
94. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283–84 (1977) (teacher’s claim that he was not rehired because of his public criticisms of dress code was cognizable First Amendment retaliation claim; burden on school district to show that it would have reached the same decision even in the absence of the speech at issue); Perry v. Sindermann, 408 U.S. 593, 597–98 (1972) (First Amendment prohibited state college from not renewing a professor based on his public criticisms of the college administration). Matters of public concern usually involve charges of illegal action, abuse of authority or power, and fraud, corruption, or waste; matters suitable for legislative attention; allegations of pervasive racial discrimination in a government agency; or questions regarding public safety. See Hughes v. Bedsole, 913 F. Supp. 420, 428 (E.D.N.C. 1994) (citing Jurgensen v. Fairfax Cnty., Va., 745 F.2d 868, 871 (4th
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| Title | Recruitment and selection law for local government employers - Page 316 |
| Full Text | 300 | Recruitment and Selection Law for Local Government Employers 8.5.1.4 An Applicant’s Opinions about Politics and Other Matters of Public Concern The sheer variety of material that an Internet search might turn up makes it difficult to generalize about the legal dangers such material poses for employers. There is no question, however, that a private employer could refuse to hire an applicant because the persons charged with hiring did not like the contents of that applicant’s online communications, whether the subject matter was personal or political. That is because private employers have no duty to respect the free speech rights of their applicants and employees. Public employers, on the other hand, must tread very carefully if they propose to use an applicant’s online expression as a basis for rejecting the person for employment. That is because the First Amendment to the U.S. Constitution prohibits the government from abridging citizens’ rights to freedom of expression. In this respect, electronic expression is no different from speech voiced out loud or from communication in the form of printed words or photographs in a newspaper. The same First Amendment tests apply to all public applicant and public employee speech and communication. Thus, whether a North Carolina local government employer can refuse to hire an applicant because of an Internet posting depends on the nature of the applicant’s posting. Only speech on matters of public concern is constitutionally protected.94 If the applicant’s Internet posting or speech uses alcohol in his or her private life. Applicants could claim that the employer refused to hire them because it perceived them as alcoholics based on Facebook postings about their behavior while drinking alcohol. Alcoholism is a covered disability under the ADA. See 42 U.S.C. § 12114(c). The ADA also protects applicants and employees whom an employer regards as having a disability even when they do not. See 42 U.S.C. § 12112(a). 94. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283–84 (1977) (teacher’s claim that he was not rehired because of his public criticisms of dress code was cognizable First Amendment retaliation claim; burden on school district to show that it would have reached the same decision even in the absence of the speech at issue); Perry v. Sindermann, 408 U.S. 593, 597–98 (1972) (First Amendment prohibited state college from not renewing a professor based on his public criticisms of the college administration). Matters of public concern usually involve charges of illegal action, abuse of authority or power, and fraud, corruption, or waste; matters suitable for legislative attention; allegations of pervasive racial discrimination in a government agency; or questions regarding public safety. See Hughes v. Bedsole, 913 F. Supp. 420, 428 (E.D.N.C. 1994) (citing Jurgensen v. Fairfax Cnty., Va., 745 F.2d 868, 871 (4th |
