Reports show that 81% of people in the U.S. have at least one social media profile – that’s over 260 million people. Individual profiles are now mainstream. These accounts, such as Facebook or Instagram, usually house an abundance of personal information about users, most of which would be inaccessible by ordinary means to third parties in the absence of the social media profiles. Users, however, are now placing this personal information in an easily and readily accessible location.
In the hiring process, employers historically have engaged in many kinds of due diligence, from formal background checks to contacting references or former employers, to formal interviews of applicants. These all are ways that employers try to gain an understanding of who the applicant is and whether he or she is right for a position in the company. For these same reasons, it only makes sense that employers would be curious about what a job applicant has decided to post on social media.
Many employers do use social media to screen candidates. According to a recent study by CareerBuilder, 57% of surveyed employers are less likely to interview a candidate they cannot find online and over half have decided not to hire candidates based on their social media profiles. Fully 70% of employers now use social media to screen candidates, up from 11 percent in 2006.
However, like anything else that is employment law related, employers must proceed thoughtfully and cautiously in deciding whether and how to use social media in vetting candidates for hire. Searching applicant social media accounts could be a legal or reputational risk, even if it is not part of the formal hiring process.
Social media sites can offer information about a prospective employee’s education and previous employment, but it can also reveal the individual’s religious beliefs, national origin, sexual orientation, or age. The former is relevant to the hiring decision; the latter indicates the prospective employee’s affiliation with a protected class, which employers legally cannot use in making a hiring decision. Regardless of whether the protected class information is a factor in a hiring decision, accessing such information could lead to an inference on the part of an unhappy, rejected candidate and can lead to a discrimination claim. Even if the claim is without merit, there is a cost in defending such a claim, and there is an additional reputational risk arising from publicity surrounding the claim and the use of social media as the source of the discriminating information.
To avoid this potential liability, employers should refrain from searching social media during the hiring process, unless there is a compelling reason do so beyond mere curiosity (e.g., hiring for a social media manager position). In those companies that have decided as a matter of policy to use social media as a hiring or due diligence tool, the best practice is to use a third party, such as a human resources consultant, to search job applicants’ social media accounts and pass only relevant lawful information to the hiring manager.
Additionally, employers should educate themselves to ensure compliance with lawful interview practices, anti-discrimination laws, the Fair Credit Reporting Act (FCRA), lawful off-duty conduct laws, and password protection laws.
Bill Egan is a seasoned Employment Law Attorney backed by over 33 years of proven, veteran experience. He specializes in navigating businesses through conflict resolution in the workplace.
Emilee Walters is our first Avisen Legal Fellow and a third-year law student at St. Thomas School of Law. Emilee is exploring a legal career in business law.