Insight Important Risks to Consider When Using Social Media in Hiring

With more than 800 million active users on Facebook, over 200 million Twitter accounts, and greater than 135 million members on LinkedIn, employers now have greater access to information regarding job applicants. There is no question that social media is a convenient and cost-effective hiring tool. With just a few clicks of a mouse, an employer can access lawful information that may provide valuable insight into an applicant’s background, candor, judgment, and professionalism that cannot be gleaned from the applicant’s resume or interview. However, employers should be aware of their exposure to certain legal risks when using social media in hiring and take steps to minimize these risks.

Discrimination – Accessing an applicant’s profile may yield facts that are not essential to the hiring process, such as an individual’s race, color, sex (including pregnancy status), religion, national origin, disability, genetic information, age, and military status. Federal and state anti-discrimination statutes prevent employers from using certain non-job related information in making hiring decisions. Thus, accessing certain information from a social media profile could potentially lead to a discrimination claim by an unsuccessful applicant alleging that improper information was considered in the hiring process.

For purposes of determining what information may or may not be considered in hiring decisions, employers should review all applicable anti-discrimination laws. Below are the federal anti-discrimination statutes applicable to private employers:

• Title VII of the Civil Rights Act of 1964 (“Title VII”) – Employers with 15 or more employees are subject to Title VII, which prohibits discrimination on the basis of race, color, religion, sex, or national origin. Title VII was amended by the Pregnant Discrimination Act of 1978 to prohibit sex discrimination on the basis of pregnancy.
• Title I of the Americans with Disabilities Act of 1990 (“ADA”) – Employers with 15 or more employees are subject to the ADA, which prohibits discrimination in employment on the basis of disability and prohibits employers from asking prospective employees disability-related questions during the hiring process.
• Genetic Information Non-Discrimination Act of 2008 (“GINA”) – Employers with 15 or more employees are subject to GINA, which prohibits discrimination against applicants on the basis of genetic information, which includes information regarding an applicant’s genetic tests and the genetic tests of an applicant’s family members, as well as information about the manifestation of a disease or disorder in an applicant’s family members, i.e., family medical history. Although GINA has generally been a non-issue for employers, the disclosure of family medical history through social media, such as a Facebook post by an applicant informing others that she is raising money to support breast cancer research in memory of her mother and aunt, makes GINA a real concern.
• Age Discrimination in Employment Act of 1967 (“ADEA”) – Employers with more than 20 employees are subject to the ADEA, which protects people who are 40 years of age or older from employment discrimination on the basis of age.
• Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) – All employers, regardless of the number of employees, are subject to the USERRA, which prohibits employment discrimination on the basis of military service or obligation.

Employers should also consider any state anti-discrimination laws to which they are subject. Most states have enacted statutes that mirror the federal anti-discrimination protections. Moreover, many states (not including Idaho) have extended their anti-discrimination laws to protect certain other classes, such as sexual orientation, gender identity, and/or marital status. In 2011, Senate Bill 1033 was introduced to the Idaho Legislature, which seeks to add sexual orientation and gender identity to Idaho’s Civil Rights Act; however, no action has been taken since January 24, 2011. Further, employers should consider local ordinances in effect that provide similar and sometimes greater protections against employment discrimination. For example, on December 21, 2011, the City of Sandpoint, Idaho passed Ordinance No. 1261, which added sexual orientation and gender identity to its anti-discrimination law already in place.

To ensure compliance with anti-discrimination laws, employers are encouraged to implement safeguards designed to prevent the use of improper information in making hiring decisions. These may include hiring a neutral third-party to search social media sites and filter out any non-job related information, or designating a member of management not involved in hiring decisions to search social media sites and screen out information that should not be considered in evaluating candidates for employment. If employers choose to access social media sites in the hiring process, they should do so consistently for all applicants. To help ensure compliance, these safeguards should be documented in a comprehensive written policy for management regarding the use of social media in hiring.

Privacy – If an applicant’s social media profile is not accessible to the public, an employer should never use methods aimed at circumventing the applicant’s privacy settings. For example, an employer is prohibited from using a current employee’s Facebook account to view an applicant’s private profile on Facebook. Such conduct violates the federal Stored Communications Act, which makes it illegal to intentionally access without authorization a facility through which an electronic communication service is provided. Further, such conduct could be the basis for a state law invasion of privacy claim against the employer. Again, the prohibition against accessing any applicant’s private social media profile should be contained in the written policy provided to management.

Required Authorization and Disclosures – The federal Fair Credit Reporting Act (“FCRA”) applies when an employer is seeking a “consumer report,” which is defined as any written, oral, or other communication by a “consumer reporting agency” (a third-party) that bears on the applicant’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living. The Federal Trade Commission recently stated that employers that rely on a social media background check service for information about job candidates must comply with the FCRA. If the FCRA is implicated, then the employer must obtain the applicant’s written authorization prior to the background check, and the employer must make certain disclosures to the applicant prior to taking adverse action based in whole or in part on the consumer report. Management should be aware of these requirements.

In conclusion, there are various legal issues employers should consider before searching applicants’ social media profiles. Employers should implement safeguards to minimize the legal risks associated with the use of social media in hiring and implement a written policy to help ensure manager compliance.

If your business does not currently have a written policy regarding the use of social media in hiring and you would like us to assist in drafting one, or you have any questions regarding this topic, please call 208.344.6000 or email corporate@hawleytroxell.com.