What not to do when reviewing job applicants’ social media pages

Facebook and Twitter are a wealth of information but can expose your company to liability

This first article of a three-part series on social media explores three “don’ts” surrounding an employer’s use of social media to vet job applicants and make hiring decisions.

 

The proliferation of social media has gifted employers everywhere with a perpetual headache. Indeed, the social media revolution has bequeathed onto employers the complex job of monitoring and policing their employees’ use of social media to communicate about such sensitive and confidential subjects as their fellow employees, clients and the work that they do. But, before this, employers are first faced with the thorny issue of how to monitor the social media personas of their prospective employees and job applicants.

Don’t ask

On May 22, the Illinois legislature passed a bill that will make it unlawful for employers to ask job applicants and current employees to provide non-public information such as their passwords, log-in information or other account information on social networking websites.

The bill, HB 3782, which is currently awaiting Governor Quinn’s final approval, is one of a growing number of bills being proposed by state legislatures to prevent employers from requiring prospective and current employees to disclose their social networking passwords and private account information.

So far, Maryland is the only state that has passed such legislation, but similar bills have been introduced in California, New York and Washington, and a federal statute is currently being considered.

The message to employers is simple: Do not ask a prospective employee for his or her social networking password, username or any other private account information in an effort to explore their usage. Although engaging in such action is presently only prohibited in one state, the possible enactment of a federal law illegalizing this conduct suggests that it is only a matter of time before we see increased protection for employees in this area.

More importantly , even if an employer is able to legally obtain this private information, the employer’s decision to merely look at the potential employee’s social networking site could expose it to liability.

Don’t look

A prospective employee’s social networking site can reveal a significant amount of information that could influence the hiring decision. A candidate’s Facebook or Twitter page that is replete with racist, sexist or bigoted sentiments or images, for example, would undoubtedly give pause to an employer ready to make a job offer. But the decision-maker’s review could simultaneously supply it with information that could later make it the target of a discrimination suit.

Take, for example, a Facebook page that shows an employee’s religious beliefs or a Twitter page that discusses an employee’s battle with HIV or schizophrenia. Even if the employer elects not to hire these employees for a reason unrelated to their religious beliefs or disability, the decision-maker’s mere knowledge of their status within a “protected class” could expose the company to liability if the employee later challenges the employer’s decision not to hire.

In the same vein, even if the employees are hired and later terminated, the employer may face an uphill battle trying to discredit a discriminatory termination lawsuit predicated on the employee’s protected status. In either of these situations, the employer could be forced to defend a claim under the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, or the Genetic Information Nondiscrimination Act. Certainly, the decision-maker that has no knowledge of an employee’s protected status will be in a much better position to defend itself against either of these attacks.

Don’t panic

Employers vetting potential candidates should not disregard the significance of social media in identifying potentially problematic candidates. Employers must simply ensure that if they do choose to use this resource, they clearly separate the decision-maker from the individual responsible for reviewing the candidate’s social networking page and only review information that is publicly available.

For example, an employer who elects to review a candidate’s Facebook page that has images conveying an allegiance to a white supremacist group, but also delineates that the candidate is a 45-year-old, devoted Catholic, must ensure that the decision-maker is only apprised of the candidate’s white supremacist involvement. By guaranteeing that the information conveyed to the decision-maker about a candidate’s social media persona is not related to the candidate’s protected status (e.g.: religion, disability, race, age), employers can vitiate any potential claims.

Even under Illinois’ proposed law, employers will not be enjoined from obtaining information about a prospective employee that is in the public domain. Thus, if the law is enacted, an employer will not run afoul of it by pulling up portions of an applicant’s Facebook profile that are not set as private. Further, an employer cannot be hailed into court by every applicant who does not receive a job offer and even those employees who do file suit are not guaranteed a victory.

Nevertheless, employers must insure that they use social media to make hiring decisions with great care. Although employers can easily identify the short-term benefits from reviewing a candidate’s social media content, if not done properly, these benefits will be outweighed by the unknown broader consequences. 

Contributing Author

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Kwabena Appenteng

Kwabena Appenteng is based in the Chicago office of the national labor and employment law firm Ogletree Deakins. Appenteng's practice focuses on a wide range...

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