By: Lauren G. Goetzl
Employers often look to social media as a tool during the hiring process. Social media can provide a wealth of information about applicants. For example, social media can reveal an applicant’s honesty during the hiring process, volunteer work and professional credentials, and even maturity and judgment. In fact, an April 2016 CareerBuilder survey found that sixty percent of employers now use social networking sites to research job candidates, a five hundred percent increase from ten years ago. However, employers should use caution and follow certain guidelines when using social media to avoid a number of legal pitfalls.
Employers are well-trained to avoid asking about certain categories of information during the application and interview process, but may inadvertently obtain information regarding an applicant’s protected characteristics while reviewing his or her social media profiles. For example, an employer reviewing an applicant’s profile might learn the applicant’s race, age, disability, or even medical history. If the employer uses any of this information as the basis for hiring decisions, it may violate Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act of 1967, the Genetic Information Nondiscrimination Act of 2008, or various state statutes or local ordinances.
Additionally, employers who use a third-party service to conduct social media checks are subject to the Fair Credit Reporting Act (FCRA). The FCRA requires employers to provide notice to applicants that the company will be obtaining a background check and obtain consent. Furthermore, if the company thinks that it may not hire an applicant based upon information in the report, it must provide the applicant with a copy of the report and a notice about correcting erroneous information in the report. The FCRA does not apply to employers who perform their own reviews of social media without using a consumer-reporting agency.
Employers who ask applicants for their passwords to look at their social media profiles also run the risk of violating state laws. Although there are not currently any federal laws that prohibit employers from asking employees for their usernames and passwords for social media accounts, a number of states have enacted laws regarding access to such information. For example, Maryland prohibits employers from “fail[ing] or refus[ing] to hire any applicant as a result of the applicant’s refusal to disclose” their username, password, or other log-in information.
These are just a few of the potential pitfalls that employers using social media during the hiring process may encounter. If your company does decide to use social media during your hiring process, there are several steps it should take to minimize its risk of litigation.
- Consider enacting and/or updating a social media policy. Employers should keep their internal policies up to date in accordance with developments in practices and in the law.
- Don’t ask applicants for their log-in information. Employers who ask applicants for their log-in information run the risk of violating state laws.
- Limit who reviews and/or has knowledge of applicants’ social media profiles. Employers should have their Human Resources or hiring departments review applicants’ social media profiles and refrain from sharing information found on social media profiles. By sequestering this information to a limited group of people, it helps prevent claims that the hiring manager used inadvertently discovered protected characteristics or information during the selection process.
- Be consistent. If an employer decides to review applicants’ profiles, they should either review all profiles or not review any profiles and should review profiles at the same point in the process for each applicant. Employers who selectively review applicants’ profiles run the risk of litigation accusing them of engaging in discriminatory hiring practices.
- Consider the source. If a social media review turns up questionable information, the employer should consider whether the information comes from the applicant him or herself or someone else. If it comes from a third party, it may simply be an unreliable source that should be discredited. By contrast, the information may be worthy of consideration if it stems from the applicant him or herself.
- Use information found on social media cautiously. The law is constantly changing on the use of social media in hiring. Employers should seek counsel before making any hiring decisions based upon social media and, at a minimum, should treat applicants the same with regard to unacceptable information discovered on social media. Employers who make different hiring decisions based upon similarly unacceptable information found on social media may find themselves subject to litigation.
- Document any questionable information found on social media. Given an individual’s ability to access, modify, or even remove information on social media, employers should retain copies of any questionable information found on social media.
Social media use during hiring is an evolving issue and is dependent upon federal, state and local laws. Employers are highly encouraged to seek counsel from employment attorneys well-versed in employment law to ensure compliance with current legal authority.