by Angela Bosworth, JD
Social networks are more than just a fad—they have caught on as one of the primary means of communicating and connecting. And now employers are turning to the Web, using social media as an easy way to learn more about candidates and employees. With the abundance of information available on the Web, the allure of a quick and dirty Google search is tempting. It’s no wonder that a recent study by Microsoft® found that 70% of employers have rejected candidates based on information found on the Internet. With all of the publicly posted and free content available on social networking sites like Facebook®, LinkedIn® and YouTube®, you can find out a lot about a potential hire without spending a dime or leaving your desk.
Depending on an individual’s privacy settings, it’s well known that posts, tweets, photos and status updates are often in the public domain, not always protected and, in most cases, easily found in a quick online search. According to the Search Engine Journal, 53% of employers research a potential job candidate on social networks, with some companies even outsourcing to third party companies that specialize in social network “snooping.”
But what’s legal?
Before hopping on to the Web to check up on your next applicant, you need to consider that there is a fine line between due diligence and discrimination. Title VII of the Civil Rights Act creates protected class status for race, gender, religious beliefs, and national origin. The Americans with Disabilities Act and the Age Discrimination in Employment Act protect handicapped individuals and people over the age of 40. Some states, like California, extend those protections even further, to include pregnancy, marital status, and sexual orientation. Google searches or a glimpse at a Facebook profile pic can reveal information about a person’s race, age, religious beliefs and national origin—none of which are legal to consider during the hiring process. You may be looking for deal-breakers like illegal activity or a criminal past, but what you find may be legally protected information. Groups, “likes” and status updates could include prohibited information, such as religious affiliation or clues about addiction, medical handicaps, or sexual orientation. And once you see it, it is part of your record. Web activity is easily tracked and documented, and if your company’s hiring practices are questioned, you may find yourself defending a discrimination claim. In other words, you cannot un-ring the bell.
Just ask the University of Kentucky. The university recently paid out a $125,000 settlement for failing to hire Dr. Martin Gaskell, the top candidate for an Astronomer position at the University observatory. The search committee looked at Dr. Gaskell’s personal web site, where they read a blog post expressing creationist views. The hiring committee of university professors called him “something close to a creationist” and “potentially evangelical” in e-mails. Gaskell claimed that the committee made a decision not to hire based on his religious views, and the University agreed to settle rather than put the case to a jury.
PRIVACY, ACCURACY, AND THE FCRA
In addition to the laws dealing directly with discrimination in the hiring practice, other legal considerations include the right to privacy, and the protection of lawful activity outside of the work place. Many states extend the right to privacy to the private sector, and at least four states protect lawful activity off duty: California, Colorado, New York and North Dakota. In one of the first opinions on record concerning social networks in the workplace, the NLRB recently upheld an employee’s right to complain about work conditions on Facebook. The judge relied on Section 7 of the National Labor Relations Act, upholding the posts since they were about the terms and conditions of employment, including job performance and staffing (NLRB v. Hispanics United of Buffalo). Facebook has become the new water cooler, and at least one judge has recognized it as a legitimate forum to air workplace issues.
One of the biggest challenges with social media is that it cannot be verified for accuracy. Content is generated by the users, and search engines are not in the business of verifying information. Anyone can post a comment or tag a photo. How do you know that the subject is really your applicant? Photoshop anyone? One unresolved issue is whether the use of social media aggregators is subject to the Fair Credit Reporting Act (FCRA). If you use a third party to conduct a social media background check, are you putting the applicant on notice, and how are you assuring accuracy, as required by the FCRA?
The use of social media in vetting employees is controversial for another reason—many believe that it’s unethical to use of tools that were created for social purposes to make workplace decisions. It is increasingly difficult to “segment” your identity, and lines between a work life, a school life, and a home life are increasingly blurred by technology. In his article “The Web Means the End of Forgetting” (The New York Times, July 25 2010) Jeff Rosen writes “…the permanent memory bank of the Web increasingly means there are no second chances—no opportunities to escape a scarlet letter in your digital past. Now the worst thing you’ve done is often the first thing everyone knows about you.”
Equally disturbing for an employer is the notion that it might not know about the worst thing a potential employee has done. Does an employer risk claims of negligent hiring or negligent retention if a simple Google search would have revealed a reason not to hire?
Before you reject an applicant based on information found on the web and through social media, think about the culture of your organization, and how such a practice could impact your employees. Remember that a social media search or a quick scroll through Google does not take the place of a real background check. If you do decide to go down that cyber path, keep in mind the following tips, and good luck.
- Develop policies on the use of social media in the hiring process
- Remove the search process from the decision maker
- Make sure “screeners” and all involved personnel are well versed in Title VII protected class status and applicable federal and state laws
- Draft policies on what may and may not be considered, and what is relevant to the decision making process
- Obtain consent in advance. Consider asking applicants to disclose or provide access to information (e-mail address but NOT passwords) as part of the process (consult with legal counsel)
- Provide applicant with the opportunity to respond/dispute accuracy
- If information is relevant to a bona fide occupational qualification (BFOQ), communicate to the applicant with the advice of legal counsel
- Be aware of state laws
- Review website privacy policies and limitations of use (in light of the NLRB rulings)
- If you engage athird party, be sure to followFCRA
- Authorization and disclosure
- Adverse action
Angela Bosworth is JD, General Counsel and Executive Vice President of OPENonline in Columbus, OH. She may be reached at: firstname.lastname@example.org