Social Media in Hiring: Minimizing Legal Risks

This Advisor column was originally published in February 2012.

Never before have employers had access to so much information about job applicants. Through a few clicks of a mouse, you can learn from a Facebook profile all about an applicant’s friends and family, recreational activities, clubs, and professional associations. Some of this information could provide valuable insights into the applicant’s experience and judgment that simply can’t be gleaned from a résumé or interview. Because of this, some employers check applicants’ social media profiles during the hiring process, and there have been media reports of people who lost out on job opportunities because of inappropriate content posted on social media sites.

While employers may be tempted to take advantage of these new sources of information about job applicants, they should understand and take steps to minimize the risks associated with this new hiring tool.

Avoid Discrimination Claims

As an employer, if you don’t have information about an applicant’s protected status, such as religion, sexual orientation, marital status, race, family medical history, etc., in the first place, you can’t be accused of discriminating against the person on that basis if you choose not to hire them. However, if an employer accesses an applicant’s social media profile on a website like Facebook, it is likely to be exposed to just that kind of information, whether or not it actually considers the information in the hiring process. Although a later claim of discrimination may have no merit, merely being exposed to the information can subject the agency to EEOC investigations, costly litigation, and undermine the public’s trust in the agency.

For that reason, if you use social media sites to evaluate job applicants, you should disregard any information that is not job-related and take steps to ensure that the decision-maker is shielded from that information. Obviously, some information can fall into a gray area – dozens of photos showing an applicant in various states of inebriation and undress may not reflect how the applicant would perform specific job duties – but those photos may reflect on whether the applicant has the judgment and discretion needed for a particular job. It would be worthwhile to have someone who is not a decision-maker in the hiring process conduct this research. That person can filter out information that should be irrelevant (e.g., church affiliations, sexual orientation) to ensure that decision-makers only have job-related information.

Keep Privacy Rights in Mind

If an applicant’s social media site is publicly available, then the applicant would have a difficult time asserting that an agency that accessed the site violated his or her privacy rights. In some cases, however, employers have accessed sites that are not available to the public by using other employees’ passwords or third parties to enter the site. Depending on the circumstances, doing so could expose the agency to allegations that the applicant’s privacy rights have been infringed, including under the federal Electronic Communications Privacy Act (ECPA).

Fair Credit Reporting Act

If an employer retains a third party to conduct a background check on an applicant, certain procedural protections must be afforded under the Fair Credit Reporting Act (FCRA). To the extent an employer uses a background checking agency that accesses social media sites, it should ensure that FCRA requirements are observed.

Ensure That Information is Authentic and Reliable

Employers shouldn’t rely exclusively on social media content to vet job applicants. They should consider the reliability of the source, especially if it is a third party. Not everything on the internet is accurate. A savvy job hunter may have persuaded dozens of friends to provide glowing endorsements, for example. By automatically accepting online information as authentic and reliable, an employer risks making poor hiring decisions.

Be Consistent

One of the golden rules in hiring is to treat all applicants the same whenever possible. If you decide to use social media sites in your hiring process, make sure that you do so consistently for all applicants. For example, check the same sites for all applicants (or all applicants who make it to a particular step in the hiring process) and keep a record of your efforts.

Social media is a powerful tool that, if used properly, can be a valuable source of information in the hiring process.