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Social Media – A Legitimate Tool for Applicant Screening?

October 30, 2014

At this point in our technological lives, it is rare for those involved in the hiring process not to search the candidate’s name into Google and explore his/her social media pages, such as LinkedIn, Facebook, Twitter. This certainly has its benefits: reading an applicant’s LinkedIn page can reveal inconsistencies with his/her application, or viewing Instagram photos can reveal an irresponsible lifestyle that could spill over into the workplace.

Although social media can be a useful tool, there are significant issues using it to screen applicants and make hiring decisions. Improper use of social media in the hiring process can lead to charges of discrimination, penalties under state privacy law and/or Fair Credit Reporting Act violations.

EEO Concerns

Browsing an applicant’s Facebook account can provide an employer with a picture of the individual, untainted by the formal hiring process. However, information discovered could lead to a potential claim with the Equal Employment Opportunity Commission (“EEOC”) if the applicant is not ultimately hired. For example, an employer finishes a successful interview by a female candidate for a position that needs to be filled immediately. After the initial meeting, the interviewer loads the applicant’s Facebook page as a follow-up to the interview. The interviewer notices pictures of a sonogram dated the weekend before the interview, indicating the applicant is pregnant.

Ultimately, the interviewer decides not to hire the pregnant applicant for other reasons. Although the applicant may not have been rejected due to her pregnancy, the circumstances expose the employer to a charge of discrimination, which may lead to unnecessary expense and damage to the organization’s reputation.

Practical Tips

There are several practical tips that can be exercised to avoid potential discrimination claims. First, as the EEOC recently suggested in a press release on social media, isolate the decision-makers and designate a particular individual in the organization to perform social media research on applicants. Alternatively, work with a background check company that utilizes social media. This way only information the decision-maker should know about the applicant will be relayed to him/her; information pertaining to a protected class will be left out.

Second, reviewing social media towards the end of the decision-making process will draw less EEOC scrutiny. Doing so will also minimize the amount of applicants reviewed and thus limit the decision-maker’s exposure to superfluous information.

Lastly, if adverse information is discovered on social media, employers will benefit from allowing the applicant to address the information. The applicant may have a reasonable explanation for that unflattering photo. Having and documenting the discussion can protect the decision-maker if the employer does not hire the applicant.

In addition, the EEOC is known for scrutinizing policies or procedures that have a discriminatory impact on a protected class. Having a policy of making hiring decisions by leaning heavily on information discovered through social media may put certain groups at a disadvantage, such as those who are disabled and unable to use social media, or older workers, who tend to avoid trendy sites. This pitfall can be avoided by maintaining a broad, flexible policy for hiring applicants that utilizes multiple avenues for gathering information, such as public records, follow-up interviews, work/writing samples, reference checks, etc.

Demanding Social Media Passwords

What if the applicant’s social media profile is private and he/she blocks access to those outside his/her inner circle? Some employers request applicants turn over their account login and password information in order to gain full access. By doing so, the decision-maker gains even more information than casually browsing a social media profile, and as outlined above, use of this information can be discriminatory.

Further, there is a growing trend amongst state and local legislatures to make it illegal for employers to ask applicants and current employees for social media login information, including usernames and passwords. So far seventeen states, including New Jersey, California, New Hampshire and Maryland have outlawed employers from asking for such information. Twenty more states introduced or have similar legislation pending this year.

Fair Credit Reporting Act

As discussed previously, employers can protect themselves by engaging a third party background check company to review applicants’ social media profiles. However, this triggers protection under the federal Fair Credit Reporting Act (“FCRA”). The screening would be considered a “consumer report” done by a “consumer reporting agency,” which requires employers to abide by the FCRA’s notice and consent provisions.

Social Media Use Is Still Possible

There are many issues to be conscious of when using social media to learn more about an applicant. By taking the necessary precautions, employers can still use social media to get a better idea of the person behind the application. In all circumstances, using social media towards the end of the hiring process will minimize exposure to unwanted information. If such information is discovered, providing applicants with a chance to address the information may ease concerns, or, at the very least, result in solid evidence that the applicant was denied employment for non-discriminatory reasons.

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