Using Social Media In Employment Screening: Striking it Rich or Striking a Landmine?

Posted by Brian O'Donnell on May 05, 2017 in Uncategorized tagged with

In 2009, a would-be employee at Cisco shared the following on his Twitter account: “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” In response to his tweet, a “channel partner advocate” for Cisco Alert, tweeted “Who is the hiring manager. I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the web.” As the foregoing example illustrates, social media profiles can be great sources of information for employers. In this example, Cisco’s social media acumen helped them weed out a potentially bad employee. However, basing hiring decisions on social media content can also present a risk for employers and can potentially lead to discrimination claims and/or lawsuits.

Many employers already screen potential employees by examining their social media presence. In 2015, nearly 50% of employers used social networking sites and social media to research job candidates, up from 39% in 2013. In a Career Builder Survey, 51% of employers in 2013 who researched candidates on social media found content that caused them not to hire the candidate. Common reasons that employers have chosen not to hire certain candidates include provocative and inappropriate photos, and discriminatory comments related to race, gender, religion, or the like.

While an employer can definitely refuse to hire a potential employee because he has written sexually explicit comments or posted pictures of himself doing drugs on his social media profiles, by viewing the social media profiles of potential employees, employers can also potentially open themselves up for discrimination lawsuits. For example, Title VII of the Civil Rights Act of 1964 (“Title VII”) indicates that it is “an unlawful employment practice for an employer… to fail or refuse to hire or discharge an individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, sex, or national origin.” Similarly, the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”) forbid employers from discriminating against individuals based on disability or age.

The Equal Employment Opportunity Commission (“EEOC”) has provided guidance to employers on what employment questions are inappropriate. For example, the EEOC has indicated that questions regarding a potential employee’s religious observances, birthplace, national origin, military service, number of children, marital status, pregnancy plans, height, and weight are all prohibited. In general, an employer may not use that information when making employment decisions.

While such potentially protected information may not be asked in a job interview, employers can often find the answers to such questions on social media profiles. When searching the social media profiles of potential employees, employers often discover information that is helpful in making employment decisions, but may also become aware of information that cannot be used to make employment decisions. If an employer uses such protected information to make employment decisions, they run the risk of violating the relevant federal and state statutes.

In lawsuits regarding discrimination in hiring, plaintiffs are entitled to discover information regarding whether or not an employer viewed their social media profiles, as well as how long an employer viewed the plaintiff’s and other candidates’ social media profiles. By accessing this information, plaintiffs will know which candidates an employer searched, how long the employer viewed their particular information, and what searches the employer ran for other candidates. With this information, plaintiffs may be able to create convincing arguments that certain candidates were quickly dismissed or not considered because of instantly identifiable protected information on their social media profiles. An employer should take into account that, once someone reviews a social media profile, the court will assume that the viewer is aware of any protected characteristics that are identified on the profile.

Although using social media to make employment decisions might carry some risks, it can also be a valuable tool in hiring good employees – and avoiding poor ones. In order to prevent lawsuits or other legal issues, there are several steps employers can take to maximize the benefit and minimize the risk of searching social media sites:

  1. Have someone else do it. It is a good idea to have someone other than the person ultimately making the hiring decisions search the candidates’ profiles. For example, have someone in the Human Resources Department do it because HR professionals are more likely to know what information is appropriate for consideration and can inform the decision maker appropriately.
  2. Wait until after the interview. If you wish to use social media in hiring decisions, it is better to wait until after meeting the candidate face-to-face. The reason for this is that, by searching social media after the interviews, you are less likely to be accused of relying on protected characteristics evident on social media profiles.
  3. Be Consistent. When searching the social media profiles of candidates, either look at every candidate’s profile or none of them. Do not only look up the people you are leaning towards not hiring, or vice versa. Similarly, spend similar amounts of time viewing each candidate’s profile and conduct the same searches at the same point in the process for everyone. Avoid discriminatory practices or biases.
  4. Keep Records. If you are basing your hiring decisions on something you see on a candidate’s social media page, print it out or save a screen shot of it, and document the reason for the rejection—such as bad judgment or lack of professionalism. This protects you in case the candidate deletes the content by the time the employment decision is challenged. It also supports your position that the decision was not discriminatory.
  5. Consider the Source. Make sure the tweets or posts are by the candidate and not from someone else. There are many fake social media profiles out there. Consider asking the candidate about troublesome material if you are unsure whether the candidate was the author of it.
  6. Be aware that other laws may apply. For example, if you use a third-party to do your social media screening, which may be a good idea, you may be subject to the Fair Credit Reporting Act, which would require you to make available to the candidate the information you received concerning him or her.
  7. Do not ask for passwords. Asking for a candidate’s password creates a risk of violating the Stored Communications Act. Only search material that is visible to the public.

If an employer follows the aforementioned guidelines and is careful not to make hiring decisions based on improper information, then the legal risks will be minimized and the benefit gained from viewing the social media profiles of potential employees will not be lost. If you have any questions or concerns regarding hiring and social media, please contact Aaron A. Hessler, Esq. at aahessler@wegmanlaw.com.