by Nicholas Walker, Esq.
In a stagnant economy, smart hiring decisions are more important than ever. That’s one reason employers increasingly use web-based social media—such as Facebook, LinkedIn and Twitter—to screen potential employees, in addition to the usual applications, interviews, references, and background, credit and drug tests.
But they don’t always recognize the potential pitfalls and risks.
Invasion of privacy
Applicants who feel employers shouldn’t be looking at their social networking profiles, often claim that it’s an invasion of privacy. Many social networkers believe that what they do and post on social networking sites is private.
Under the law, a claim of invasion of privacy is almost exclusively based on whether an employee has “a reasonable expectation of privacy in the information viewed.”
Courts have yet to decide any lawsuits alleging invasion of privacy by employers checking applicants’ social networking information. However, applicants who allow their profiles to be viewed by the general public would have a hard time demonstrating that they had a reasonable expectation of privacy.
On the other hand, employers can’t hack a potential employee’s account or pose as someone else in order to “friend” the potential applicant and gain access to this information. That would invite a lawsuit.
Advice: If you decide to seek social networking information to vet applicants, use information that’s generally available to the public. Don’t try to gain access through covert means.
Discrimination
Federal and state laws generally prohibit discriminatory hiring decisions based on protected categories such as race, color, religion and sex. The danger of conducting background checks of applicants using social media is that you may discover the applicant belongs to a protected category—information you probably wouldn’t learn through your general application process.
Once an employer views someone’s social networking page, there’s no going back.
User profile pictures automatically tip off the applicant’s race, gender and age. Because social media users typically provide additional information about their interests, you could learn that they have a family, once served in the military or are disabled.
That doesn’t inherently lead to discrimination. However, if you make an adverse employment decision after viewing an applicant’s social networking profile—even if you never considered that information—you may find your organization subject to a discrimination claim.
Another risk exists in the form of disparate impact claims, which can arise if it turns out an employer has been systematically refusing to hire applicants with a particular protected characteristic, such as race.
Even if no disparate impact occurred because an employer viewed social networking profiles, disparate impact can result if the company tends to hire people who have social networking profiles rather than those who don’t. It’s a generality, but this could occur because younger, more Internet-savvy and more affluent people tend to use social networking more than others do.
Advice: If you use social networking profiles in your hiring process, insulate the hiring decision-maker. Have someone else actually view the profiles to gather limited, specific information on each applicant (e.g., whether or not the applicant has posted inappropriate photos, or if the applicant has or is working for a competitor).
It’s fine to tailor these searches to issues important to your company. For example, if you are a large oil company, you might want to know if the applicant is involved in any groups that purport to be against “big oil.”
Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA) governs “employment background checks for the purposes of hiring” and applies if “an employer uses a third-party screening company to prepare the check.” Under the law, if you use an outside service to view social networking sites and provide information, the applicant must be informed of the investigation, given an opportunity to consent and notified if the report is used to make an adverse decision.
Advice: If you decide to use social networking information in your hiring decision, consider doing those internally, not through a third party. That avoids claims under the FCRA.
Identity, authenticity and accuracy
Employers cannot be sure that the information they find on a social networking site is actually about the applicant they are researching and not someone else with the same name. Also, because anyone can create a profile (even a fraudulent profile for someone else), it’s impossible to tell if the information is accurate.
In fact, there’s evidence that some applicants try to game the hiring process by creating fake profiles of other potential applicants who they view as competition for jobs.
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Author: Nicholas Walker is an associate in Ogletree Deakins’ Kansas City, Mo., office. He exclusively defends employers and management in employment-related disputes in various forums, focusing primarily on discrimination, retaliation, harassment and wrongful discharge cases.
