Opinions and Legal Insights

HOW TO USE SOCIAL MEDIA DURING RECRUITING AND HIRING WITHOUT LIABILITY

Seven in ten Americans use social media, according to the Pew Research Center.  They connect with one another, access content, share information, and entertain themselves through social media.  When the Pew Research Center first surveyed the use of social media in 2005, only five percent of American adults used at least one form of social media.  By 2011, half of all American adults used social media.  Today, 72% of adult Americans interact with some form of social media.

In other words, social media has gone mainstream.  It no longer involves a cutting-edge technology.  Thus, for good reason, employers have adapted social media to their own uses in two ways during recruiting and hiring.  First, they publicize job openings in social media to recruit candidates.  Second, employers vet candidates by conducting social media searches.

I. Avoid the Possible Unintended Consequences of Social Media Advertising.

The laws that govern recruiting and hiring, such as the state and federal equal employment opportunity laws, predate social media.  Unsurprisingly, they impose no direct obligations on employers that use social media in their recruiting and hiring.  The general principles of those laws, however, still regulate how employers deploy social media.

For example, some qualified applicants either avoid or lack access to social media.  Suppose an employer limited its recruiting efforts to social media advertising alone.  By doing so, it would automatically exclude two groups of qualified applicants–those that avoid social media and those economically unable to afford social media access.  If either, or both, of those groups correlated with racial or ethnic groups, then the use of social media advertising could cause an unlawful disparate impact on them.

Employers can easily avoid any possibility of such a disparate impact by employing more recruiting channels.  In other words, they should cast a broad net and advertise job openings not only in LinkedIn or Facebook, but also through the employer’s website, trade associations, job fairs, print media, and job posting websites.

Social media postings of job openings, furthermore, face the same regulations under federal discrimination laws as other forms of advertisements for employment opportunities.   Consequently, private employers with at least 15 employees must keep a record of the text of any such social media job postings for a period of one year from the date of the posting.    Government contractors that employ at least 150 employees or whose annual total dollar value of government contracts equal at least $150,000 without regard to how many employees that they employ must maintain a record of their job postings for a period of two years.

II. Strategic Ways to Use Social Media to Gather Information Relevant to Hiring Decisions without Risking Liability for Unlawful Discrimination or Invasion of Privacy.

During the hiring process, employers can find useful information about applicants from their social media postings.  For example, postings with racist rants or tirades against the poster’s current or past employers or their products provide legitimate non-discriminatory reasons to eliminate an applicant from further consideration for employment.  In addition, a candidate’s postings may provide information about his education or work experience inconsistent with that shown on his resume.  If upon further questioning the applicant lacks any plausible explanation for such inconsistencies, they offer another lawful reason to eliminate a candidate from further consideration.  Similarly, a candidate’s postings may belie her representations on her resume or assertions during an interview that she has strong writing skills.  The poor writing skills demonstrated in social media postings furnishes a legitimate, non-discriminatory reason to eliminate an applicant from further consideration if the job for which she has applied requires solid written communication skills.

On the other hand, social media may provide too much information.  It may reveal the religion, age, ethnicity, national origin, disability, family medical history, race, personal medical history, pregnancy, or gender of an applicant.  If an employer interviews an applicant, it will always acquire self-evident information about her race, approximate age, ethnicity, pregnancy, and gender, at least.  The discrimination laws impose no liability on employers because of the mere exposure to such information.  Whether and how an employer uses such information may put the employer at risk for the violation of one or more employment discrimination laws.  Admittedly, however, the mere exposure to such information even without any unlawful intentions because of it puts employers at risk for applicants to accuse them of unlawful discrimination.

To use social media effectively during the hiring process while minimizing the liability risks, employers must do so strategically.  The observance of the following guidelines will enable employers to obtain the benefits of the useful information available in social media without putting them at risk for legal liability.

A. Request no disclosures of usernames and passwords. Twenty-six states have enacted legislation that generally prohibits employers from requesting either applicants or employees to disclose usernames and passwords to social media accounts.   Similarly, these laws also typically forbid an employer from requiring applicants either to access their social media accounts in the employer’s presence or to add a person or organization to the account’s list of contacts, or both.  A federal law, moreover, the Stored Communications Act (“SCA”), prohibits the unauthorized accessing of an electronic communications facility.  Effectively, if an employer coerces an applicant to obtain her username and password or uses deception, such as posing as someone other than the employer, to obtain access to her social media postings, the employer violates the SCA.  Applicants or employees can recover actual damages, punitive damages, and their attorneys’ fees from employers that violate the SCA.

B. Isolate the decision-maker from the inspector of social media sites and postings.    An employee with no decision-making authority or an outside organization should examine the social media sites and postings of job applicants, rather than the decision-maker.  The examiner must have instructions to ignore any information or postings that identify any one or more of the age, color, citizenship, creed, disability, ethnicity, family medical history, gender, personal medical history, national origin, pregnancy, or race of the applicant.  The inspector examines an applicant’s social media sites and postings to identify any problematic conduct and any inconsistencies between the information stated on her resume and that disclosed in social media profiles and postings.  The examiner reports any such conduct and inconsistencies to the decision-maker without revealing any information about the applicant’s membership in any legally protected classes.  If an employer hires an outside organization to conduct the examination of an applicant’s social media profiles and postings, it must disclose its intention to hire such an organization and obtain the applicant’s written authorization for the employer to do so in accordance with the Fair Credit Reporting Act.

C.Review social media sites and postings later, rather than sooner, in the hiring process. Employers should limit their examinations of social media profiles and postings of applicants until after they have interviewed them.  At that point in the process, the employer will already have knowledge of their membership in self-evident legally protected classes, such as approximate age, color, physical disabilities, gender, pregnancy, and race.

D.Investigate the social media profiles and postings of all similarly situated candidates. During the hiring process, an employer’s consistent treatment of similarly situated applicants offers the best protection against discrimination claims.  For that reason, employers must avoid the selective use of examinations of the social media profiles and postings of applicants.   Thus, an employer should pick a point in the process, such as when it makes a conditional employment offer to a candidate, at which it will conduct social media examinations.  If the employer has only one position to fill, then it may examine only the social media profiles and postings of the candidate that it hires if it performs social media examinations only after it has made a conditional job offer.

E.Keep records of any disqualifying social media information. If the examination of social media content causes an employer to eliminate a candidate from further consideration, then it should both print that content and save it to a secure storage location.  In addition, the employer’s decision-maker should write a brief note explaining the reason for the candidate’s elimination, such as the applicant’s incoherent and ungrammatical blog posts show his lack of fundamental written communication skills necessary to perform a copyeditor’s job.      

F. Confront the applicant with troubling social media content. Information gathered from social media poses a significant risk of falsification.  [“Bogus accounts of the Facebook executives scam users” & “Facebook user sends friend thousands of dollars – turned out to be a fraud”] In view of this limitation, employers should confront applicants with any social media content that they may use to eliminate a candidate and ask her to explain it.  If she offers a plausible explanation, the employer should attempt to confirm that explanation before it determines whether to eliminate the candidate because of the troubling social media content.

 III. Conclusion.

Millennials now comprise about 35 percent of the current U.S. workforce.  As Baby Boomers retire, the share of the workforce that Millennials occupy will only grow.  This generation has used social media and mobile devices since their adolescent years.   The presence of social media generally and in the workplace specifically will continue and likely expand over time.  These trends will cause more employers to consider social media to offer a useful tool in their recruiting and hiring processes.   When employers put these tools to use they need to do so strategically to enable them to gather information about applicants relevant to their hiring decisions without exposing them to legal liability.   For more information about the strategic use of social media during recruiting and social media content in the hiring process, please contact Gerry Richardson, (314) 552-4053, grichardson@evans-dixon.com .