Article by Douglas Hart
Thanks to easier accessibility via smartphones and other mobile devices, social media is everywhere — in the home, at the grocery store, at school, and even at work. With recent studies indicating that Facebook has more than 1.32 billion users, and that LinkedIn has surpassed 300 million, chances are that your employees are logging in daily — oftentimes blurring the lines between work and personal online activity. Such pervasive use of social media in today’s workplace presents new opportunities for employers, as well as some concerns such as employee productivity and information breaches. Amid these and other issues that frequently arise, employers must now be mindful of how information obtained from social media sites is utilized in the recruiting and hiring process.
Although the results vary, multiple surveys performed over the past five years revealed that more than half of all employers conduct social media background checks on job candidates. The actual number of employers utilizing the Internet for screening purposes is probably higher, as organizations may be unaware of employees’ online research of candidates and not factoring that information into their evaluations. As millions of potential job candidates have profiles posted on social media sites, the existence and abundance of such online information, and the ease of accessing it, creates a virtually irresistible temptation for many recruiters and hiring managers. After all, the review of an applicant’s public postings and accounts could provide a better picture of a potential employee than what might be obtained during a face-to-face interview. Social profiles may give recruiters insight into candidates’ professional culture and fit. What someone posts may also demonstrate significant character flaws, bad judgment, a lack of prudence or integrity, or some other significant deficiency that may hint at a candidate being unfit for a position. While invaluable to an employer when ensuring that it is hiring the right person, accessing and using such information does not come without risk.
Under Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act, it is not unlawful for an employer to learn the race, gender, or ethnicity of applicants through information that is publicly displayed in social media. Likewise, it is not illegal under the Americans with Disabilities Act to learn or suspect that an individual has a disability through public information in social media. What leads to trouble, and potential claims of discrimination, is how the employer uses the information. The thing that an employer must remember is that you cannot “unsee” what was discovered through a social media outlet.
Oftentimes, the information gathered about an applicant will not create a legal issue. However, obtaining information concerning an individual’s protected status could increase the risk of a discrimination claim if that person is not hired. Once a candidate’s online profile is reviewed, a court will certainly assume that an employer is aware of that person’s protected characteristics that are often part of his or her online postings. Such characteristics include gender and race, as well as those that may not always be evident in a face-to-face interview, such as religion, age, sexual orientation or disability. A quick review of an applicant’s Facebook or Twitter profile could quickly reveal the applicant’s race, ethnicity and disabilities, as well as uncover information concerning his or her religious beliefs and age. Equipped with such information, an employer is basically placed in a situation where it must be able to provide a non-discriminatory reason as to why that individual was not hired.
Recognizing the widespread increase of social media usage in the workplace, the Equal Employment Opportunity Commission (EEOC) recently held an open meeting to discuss how the use of social media by employers, employees and applicants may implicate federal employment laws. According to an EEOC press release, Chair Jacqueline Berrien noted that “[t]he increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns…This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.” There will be public comments submitted in response to the EEOC’s open forum, and, more than likely, some guidance will eventually be issued by the EEOC with respect to the potentially discriminatory issues.
In the interim, employers can, and should, take the following measures to protect themselves from the potential liabilities associated with screening applicants through social media.
- Only search or review social media content that is available in the public domain on the Internet. Employers should not require candidates to submit their Facebook usernames or passwords, especially in light of the illegality of the practice in multiple states. Employers should also not require a candidate to “friend” the company. If an employer utilizes social media as a pre-employment screening tool, it should respect the candidate’s privacy settings when doing so.
- Use a uniform method when searching public content. Employers should conduct the searches at the same time in the process for each applicant, preferably after the initial interview, and searches should be of the same social media sites. When information is retrieved that calls to question a candidate’s professionalism, judgment or candor, employers should save any such information and document the legitimate and nondiscriminatory reasons for the hiring decision.
- Social media searches should be performed by an employee who is insulated from the hiring process. Any information found that contains protected characteristics should be removed from the information provided to the person making the hiring decision. In essence, employers should ensure that the decision-maker only reviews public content from the online search that is scrubbed of information concerning protected categories and activities. With such segregation, it is difficult to argue that protected information posted on the Internet unlawfully influenced a hiring decision.
Social media law is constantly evolving, but researching candidates the right way may help employers avoid legal ramifications. To minimize the likelihood of a charge of discrimination, an employer should establish and implement uniform policies and procedures concerning social media backgrounds checks, and search wisely!