Legal Implications of Social Media and the Hiring Process

Social media has become one of the most important tools in business practices. Companies can advertise their services and products for nothing or next to nothing, network with other businesses, generate new business, connect with their customers, and provide a valuable research tool. It has changed the face of business as we know it. With this wonderful innovation comes responsibility. Employers and employees alike must face new rules and laws associated with their social media practices.

One such practice that has become important in the business world is the use of social media during the hiring process. Some companies even go so far as to request job applicants for their username and passwords for such sites such as Facebook, MySpace, and Twitter. Where do the rights of employers and the rights of employees fit into this new high tech world? The legal system faces new challenges every day regarding this relatively young business quandary. Where should the lines of privacy be drawn?

How much social media information should an employer be permitted to use during the screening process for hiring a new employee? It has just recently come to the media’s attention that some employers ask their job applicants for their Facebook login information and password. However, the reality is that employers have been using social media to investigate these applicants for years. In 2011, Reppler, a social media monitoring service, conducted a survey of 300 hiring professionals to learn if, when, and how they are using social media to screen job applicants.

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The study found that 91% of recruiters or hiring managers use social networking sites to screen prospective employees. Out of these recruiters and hiring managers, 69% revealed that they have denied employment to a job applicant due to something they found on an applicant’s social networking site (1). Employers, however, should take caution when using the information they find to make a decision whether to hire an applicant or throw their application in the trash.

It would seem that technology is outpacing the law in this area; however, employers should very seriously review the information they find and be sure that it does not lead to a liability under the Fair Credit Reporting Act, or some other state or federal employment discrimination laws. The Fair Credit Reporting Act (FCRA) states that an employer must provide a disclosure that a consumer report or background check will be performed to their job applicants, and should obtain signed authorization by the applicant to proceed with this research.

It is also the duty of the company to provide notice to the job applicant that they will take adverse action to not hire them before the company actually takes that action, and provide a post-adverse action notice (2). It is interesting to note that these FCRA requirements do not apply to employers who perform their own background checks without using a consumer-reporting agency to obtain the information. Human resources hiring managers that perform a social media search on a job applicant are not bound to these FCRA regulations to provide disclosure and gain consent from the applicant.

This is where it gets tricky! Although a hiring manager may not have to adhere to the FCRA regulations, they may still be confronted with other state and federal laws regarding employment discrimination and privacy. In the past, employers have been very careful to not invade employee privacy, base any employment decisions on protected characteristics, or ask unlawful questions during the interview process. In the past few years though, employers have been using social media to screen applicants on a regular basis, whether formally or informally.

By performing these pre-employment research screenings on job applicants using social media profiles, employers are setting themselves up to discrimination claims under federal, state, and local laws. Since this area is still fuzzy and grey as far as the law is concerned, employers need to stay informed and educated to protect themselves from potential lawsuits. Consulting with an attorney who specializes in this field would be a wise decision. As the laws evolve, so must the employer’s behaviors.

By reviewing social networking profiles and information, employers are learning about job applicants’ religious beliefs, marital status, family relationships, race, ethnicity, medical conditions, and other information that cannot be used to make an employment-based decision. This is information that is considered as protected characteristics even though an applicant or employee has made it public on a social media profile. As a result, employers must take care when performing such research.

Ultimately, should a discrimination claim arise, the employer will have the burden of proof to demonstrate that the decision to reject a job applicant was based on a legitimate non-discriminatory reason, rather than the fact that the employer learned of the job applicant’s sexual orientation, the projected due date of the job applicant’s baby, or any other protected characteristic. So the question that persists is how can we make use of social media without disrupting any discrimination laws?

Some of the job-related information found in a profile may be highly valuable in determining an applicant’s qualifications for the job. One practical method is to only allow someone who is not involved in the hiring of the specific position to be the person who conducts the social media background check. Then, when the social media background check is completed, that person can summarize the job-related information that may be helpful in considering the applicant, and can make no mention of the “protected” information (race, religion, medical condition, etc. that would otherwise get the employer into trouble.

This way, the hiring manager, or ultimate decision-maker, receives only the job-related information, and can demonstrate that the information unknown to him or her had nothing to do with the decision to hire another candidate. Furthermore, before the job opening is even posted, employers should be clear about what they are really looking for in a social media background check, and whether it is necessary for the particular position.

For example, the importance and extent of a social media background may depend on the position the company needs to fill (for example, a CFO position versus a seasonal stockroom employee). Certainly, employers should be doing enough pre-hiring due diligence to avoid potential claims of negligent hiring, but they must balance those concerns with finding out information that exposes them to liability for discrimination. There exists yet another level of privacy invasion that some businesses have been practicing. Asking for a job applicant’s login and password information goes beyond simply surfing the web for research purposes.

Some hiring managers get around this request by having the job candidate log into their Facebook account, for instance, during an in-person interview. These potential candidates are put into a compromising position. Should they refuse this request or just do it to keep them in the running for the job? Do these employer requests violate the federal Stored Communications Act or the Computer Fraud and Abuse Act? The laws surrounding the Stored Communications Act prohibit intentional access to electronic information without authorization or intentionally exceeding that authorization, 18 U.

The Computer Fraud and Abuse Act prohibits intentional access to a computer to obtain information without authorization, 18 U. S. C. § 1030(a) (2) (C). Are these laws being violated when companies request login information from job applicants? It would certainly be a violation if the company broke into an account to access the information without authorization. The Equal Employment Opportunity Commission will have to determine whether employers who request this login information are violating anti-discrimination statutes.

State legislators are beginning to introduce legislation that aims to prohibit this practice. In April 2012, Maryland was first to introduce a bill to ban employers from demanding Facebook or other social networking login information and passwords. Other states have followed or are currently following suit with bills of their own. For instance, California introduced the “Social Media Privacy Act” to legislature which would protect the social media privacy rights of students and employees (3).

The law is attempting to catch up with technology, beginning with the states and expanding federally in the future. It is in this writer’s opinion that employers should consider the non-legal ramifications of this social media dilemma in addition to the legal implications. By demanding this private information they are setting themselves up to lose some of their best employees or potential employees simply because they believe in their rights to privacy and refuse to give access to their social media credentials.

Employers should weigh what is most important to them and evaluate what they stand to lose. Employee morale may suffer and an environment of distrust may take precedence. These conditions are not conducive to a healthy workplace resulting in poor performance and poor productivity. Is this really worth the tiny bit of extra information that may be revealed by invading a person’s social media profile? Businesses must stay on top of developing legislation to protect themselves. Job seekers should also remain educated on their rights.

It is sad to think that a person may find themselves wanted a job so badly they would be willing to hand over any information that is requested of them. We will probably see the emergence of a new department in most companies. This department will be responsible for technology privacy education and enforcement which could save the business millions of dollars in lawsuits. The future of technology isn’t slowing down one bit. The law may never catch up, but it will keep pushing forward to protect the rights of employers and employees. Social media is just that: social.

What a person does outside of the workplace is, in most cases, of no concern to the business. As they say, don’t mix business with your personal life and vice versa. If we allow that to happen, where will the line be drawn? The line must be drawn now.

Works Cited

1. Swallow, Erica, “How Recruiters Use Social Networks to Screen Candidates”, October 23, 2011, http://mashable. com/2011/10/23/how-recruiters-use-social-networks-to-screen-candidates-infographic.
2. http://www. ftc. gov/os/statutes/031224fcra. pdf
3. http://epic. org/privacy/workplace/

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