Using Facebook To Screen Potential Hires Can Get You Sued

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

Dos

  • 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.

Don'ts

  • 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]

Add New Comment

6 Comments

  • Tsvetomir Todorov

    Thank you for the useful advice!
    Debates about social media and the issues with using it for something more than leisure are even hotter now. I think that people should be more educated in using social engines, both for their career endeavours and their own safety. Articles like this are making this happen :)

    Tsvetomir
    social-media-training-courses....

  • Steel Magnolia152

    Excellent article in bringing out some sources against exploitation in this matter.  Social medias were created as a mean for people to get together and enjoy socializing, not as a calculated move to leverage the next job. A paycheck does not have the right to turn people into a one faceted dimension. This is America, people should be free to express themselves and learn from it without a paycheck penalty.   

  • Frank Woodman Jr

    Excellent article highlighting the potential pitfalls of using social media sites to screen employees. And many of these rules also apply to applicants after they become employees as well.

    Sadly right now far too few employers seem to be aware or even care about the rules of using social media as a screening tool. And it's for this reason that I foresee a lot of lawsuits right around the corner as applicants become aware of their rights.

    IMO this area will shortly become a powder keg for employers and those wrongfully denied jobs.

  • Rafael Kafka

    It is extremely easy to get any information and to not let any trace. Corporations are not stupid to hire their enemies. 

  • Frank Woodman Jr

    Companies have many ways and sources to discover the information they want about a potential hire. So if made off limits to use social media any but the dimmest will use other ways to screen prospects. The issue is whither  social media should be off limits. And I feel it shouldn't be allowed for employers to require passwords or access to posts on social media that are posts made to a select group of followers. 

  • Eric L.

    Aren't potential employers already asking most of these questions on their online application form?

    "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. "