Social media is becoming a great way for recruiters to announce job openings and find qualified candidates. The social media revolution has unleashed a torrent of new employer tools to obtain information about applicants. For example, the Internet puts at an employer’s fingertips, accomplishments a candidate has achieved related to past work or academic experiences. To safeguard their investment in a new hire, employers are turning to background checks to expose a candidate’s skills and character before they make a job offer.
Internet search can be quite useful in obtaining information about an applicant that will undoubtedly not be on their application or resume. An employer might just as easily find comments or photos posted to one of the many social networking sites such as Facebook, MySpace, or Twitter that it feels are inappropriate. Likewise a potential employer might be turned off by the frequency that a candidate visits the local party club, which he or she volunteered on Facebook Places or FourSquare.
While many employers find this information useful, organizations that use Internet searches to obtain information regarding applicants’ employment histories and personal lives should proceed with caution to avoid liability under federal, state, or local laws.
What employers need to know before they use information about candidates discovered on the Internet was the topic of my recent Workforce Trends Blog Talk Radio. My guest was Bill Egan, head of the Labor & Employment group at Oppenheimer, Wolff & Donnelly in Minneapolis, Minnesota.
Listen to the full interview here.
The first piece of advice offered by Egan was, “to ensure that the identity of the person whose information you found is accurate and it’s describing activities of the right person.”
But even if the information is accurate, the employer may not be able to exclude a candidate from consideration. Egan advises that the employer must refer its own state’s laws to see if it’s permissible to use the information, even for arrests and convictions, for employment decisions. If it’s not illegal, “A common sense approach might be to call the candidate to discuss the information that was uncovered,” recommends Egan.
I asked Egan if an employee or candidate needs to sign a release prior to a search. Surprisingly, Egan said, “a release is not required to search for information that is typically public knowledge.” So what’s considered public knowledge? Arrests, convictions, bankruptcy, marriages, divorces, etc. are generally available in the public record. Nevertheless, Egan recommends having the employee sign a release to search for information even if it’s not required “just to be safe.”
Employee Privacy Rights
But what about information discovered on Facebook? That’s where it gets a little bit dicey. And in my opinion, the law hasn’t quite kept up with what’s becoming common practice in the workplace.
Let’s say Suzy Candidate posted a few risqué photos during a college party or her last summer vacation. If Suzy set her privacy settings so that the world could view them, Suzy apparently has little recourse if the employer uses those photos as one of the reasons not to hire her. (That raises another question that I’ll leave for another day: some laws require the information discovered has to be relevant to the job. Does a drinking binge exposed on Facebook make the candidate any less qualified than company drunk who also happens to be a computer-phobe who doesn’t use Facebook?)
BUT…what if Suzy did set her privacy settings to restrict viewing of comments and photos to only people she accepted as friends? That’s a horse of a different color because now the employer might have obtained this information illegally, without the candidate’s permission. And the employer might not be able to use this information to help make the hiring decision.
Even if a recruiter or another employee who is a friend of the candidate discovered this information, the information might considered an invasion of privacy. If an employer accesses information on the Internet under the guise of becoming friends but instead uses the false identity to gain information about the applicant, they may be subject to liability. This conduct could also constitute a potentially violate the “terms of use” conditions typically established by social networking websites as well as federal law, including the Stored Communications Act.
Another thing that’s changed with the popularity of social media is the sharing of photos and videos. Anti-discrimination laws prohibit employers from requesting any picture that might cause it to hire or not hire an applicant because of his or her race, ethnicity, gender, or any other protected classification. While the need to prohibit employers from discriminating against protected classes is greater than ever, it also exposes an employer to significant risk when the first thing they are likely to see is a picture of the candidate. Likewise, searches may uncover applicant’s membership in organizations based on protected classifications such as religious affiliation, national origin, disability, sexual orientation, or even the armed forces. Any one of these discoveries may subject an employer to a lawsuit if the employer decides not to hire the individual.
Employers need not shy away from conducting applicant Internet searches simply because some risks may be involved. Searching on the Internet for candidate information is almost a necessity in today’s world. An employer may, in fact, be able to avoid legal exposure by deciding not to hire an applicant whose Internet profile discloses information about his or her inappropriate or unlawful habits.
Egan’s advice boiled down to this: To minimize the risks associated with searching the Internet to obtain information regarding applicants, an employer that decides to conduct an Internet search for one applicant must do so for all, and hiring policies must be applied consistently with regard to all applicants. Additionally, employers should verify information obtained through Internet searches; often, information posted by third parties may be inaccurate. Employers must also be sure to document the reasons for any employment decision. By following these steps, employers may be able to minimize the risk of liability for conducting Internet searches of job applicants.
The final piece of advice offered by Egan was to include a social media policy or acceptable use policy in their employee handbooks. An excellent resource site for more information about policies and the utility, usefulness, and appropriate use of social media can be found at www.socialmediagoverance.com. You’ll find dozens of examples of social media policies that both large and small companies have implemented.
Listen to the full interview, “Social Media Problems and Pitfall HR Needs to Know.”