Although there are ample business reasons for the use of social media in pre-employment screening, potential pitfalls exist for such screening as well.
These pitfalls include obtaining information that is unlawful to consider in any employment decision, such as the applicant's race, religion, national origin, age, pregnancy status, marital status, disability, sexual orientation (some state and local jurisdictions), gender expression or identity (some state and local jurisdictions), and genetic information. Because this information is often prominently displayed on social networking profiles, even the most cautious employer may find itself an unwitting defendant in a lawsuit.
To minimize the likelihood of a charge of discrimination, employers should consider assigning a person not involved in the hiring process to review social media sites (pursuant to a standard written search policy), to filter out any information about membership in a protected class (that is, race, religion, and so on), and to only forward information that may be lawfully considered in the hiring process.
Employers should keep records of information reviewed and used in any employment decision, and be sure that any information learned from social media sites in the employment decision process is used consistently.
Employers should also familiarize themselves with the "off-duty" laws in each state where their employees are located and refrain from considering any protected activities in their hiring decisions. More than half of the states prohibit employers from taking an adverse employment action based on an employee's lawful conduct on their own time (that is, off the job), even if (in many cases) the employee is only a prospective employee. In Minnesota, for example, it is unlawful for an employer to prohibit a prospective employee from using lawful consumable products, such as alcohol and tobacco, during nonworking hours. Further, New York protects all lawful recreational activities, including political activities, during nonworking hours.
While employers can continue to use social media for recruiting purposes, they should take care not to violate existing laws in the hiring process (and be mindful of the various laws developing in this area as well).
Social Media Legal Tips for Pre-Employment Screening
- Establish internal procedures for making employment decisions based on social media and web research to avoid running afoul of federal and state anti-discrimination and privacy laws.
- Use a person not involved in the hiring process to review social media sites, to filter out any information regarding membership in a protected class (for example, race, religion, and national origin), and to only forward information that may be lawfully considered in the hiring process.
- Be aware that pre-employment social media background checks may give rise to liability under the Fair Credit Reporting Act (FCRA).
- Companies providing background reports to employers—and employers using such reports—must comply with this law.
- Require all job applicants to authorize you to perform background checks under the FCRA as part of the hiring process, as well as at other times during employment.
- Require that any third party providing you with social media background checks warrant that no laws—FCRA, privacy, copyright, or other
- intellectual property laws—have been violated in gathering the information from social networking sites.
- Do not attempt to bypass a person's privacy settings in collecting social media information—for example, by impersonating a "friend" or creating a profile with the same city and/or alma mater of an applicant, in an attempt to see information restricted by geographical or university network.
- Do not forget to keep records of information reviewed and used in any employment decision, and be sure that any information learned from social media sites in the employment decision process is used consistently.
- Do not conduct social media background checks on applicants/employees for any employment purpose without first obtaining their written authorization.
- Do not assume that your managers are not using social media to screen applicants or employees, even if your company does not, as a matter of policy, conduct such background checks. Be sure to train your managers regarding the FCRA and its requirements.
- Do not make employment decisions based upon an applicant's "off-duty" lawful conduct (such as tobacco or alcohol use), which most states prohibit employers from considering.
Excerpted from Navigating Social Media Legal Risks: Safeguarding Your Business by Robert McHale, courtesy of Que Publishing.
[Image: Flickr user Andreas Levers]