In this modern age of social media mania, employers can often learn more about an applicant through Facebook, Twitter, MySpace or Instagram than they would ever learn through traditional, professional means. For example, most job applicants can feign maturity and utmost professionalism during an hour-long job interview; how they present themselves on their social media pages, however, is more likely to reflect their true decorum. So, the questions become if, and to what extent, employers should use social media sites in deciding whether to offer employment to potential hires.
There is no denying that the desire to uncover the true character of any applicant is tempting. Why shouldn’t an employer be able to deny an offer of employment based upon a candidate’s imprudent, publically shared photos or posts on social media sites? The answer to this question would be simple if the only knowledge an employer ever gained from an applicant’s social media site was information demonstrating that the applicant was not the most qualified. Unfortunately, however, the information that should disqualify an applicant is almost always surrounded by other information that can expose an employer to potential liability.
For example, by just scanning through an applicant’s social media page, even the least technologically savvy employer can ascertain information that is unlawful to consider in any employment decision and that would not necessarily be obvious during the in-person interview process. This information includes, for example, an applicant’s age, religion, national origin, marital status, pregnancy status, disability, sexual orientation (some state and local jurisdictions), or gender expression or identity (some state and local jurisdictions). Moreover, depending on the jurisdiction, how an employer obtains the information and what information an employer used as the basis of the decision can also be legally problematic. Several states, for instance, have laws that prohibit employers from taking an adverse employment action based on a prospective employee’s lawful conduct when they are off duty.
So what is the employer to do? If an employer does not wish to simply forego potentially valuable information by avoiding social media sites altogether, it should take some basic steps to minimize the likelihood of claims. To minimize the likelihood of a charge of discrimination, for example, employers should do the following:
1. Implement a standard written search policy to identify how the various sites will be searched and what information will be considered
2. Assign an individual who is not involved in the hiring process to review social media sites
3. Have that individual forward only information that may be lawfully considered in the hiring process to the hiring decision makers
4. Keep uniform records of what disqualifying information was obtained through the social media sites
5. Ensure the consistency of employment decisions based upon such information
6. Become familiar with the specific laws of their jurisdictions to determine the existence and extent of any “off-duty” laws
7. Never attempt to evade or circumvent an applicant’s privacy settings to collect social media information. This includes impersonating a “friend” or creating a false profile to gain access to the applicant’s information.
Finally, if the employer wishes to minimize liability by hiring a company that provides background reports to conduct the social media background check, it must understand that pre-employment social media background checks may give rise to liability under the Fair Credit Reporting Act. As such, companies that provide background reports to employers—and employers that use such reports—must comply with this law as well.
Accordingly, employment decisions based upon information gained through an applicant’s social media site is not without risk. If the employer takes the appropriate steps to minimize that risk, and conducts the social media search in accordance with all federal, state and local laws, however, social media checks can be a valuable tool in the hiring process.
