With the current economy as it is, more than ever businesses are trying to make sure that they make wise hiring decisions. Companies want to find a person who fits with the corporate culture, who projects an appropriate image and who can succeed. Historically, employers have researched potential hires through their applications, questionnaires, interviews, references (both personal and business), background checks, credit checks, and drug tests.

With the advent of social media, more and more employers are using the Internet to check on potential employees. Many employers find the information on these sites to be particularly helpful because they perceive that this information reflects a more accurate representation of the applicant. Users of these sites are allowed to post a variety of information including photographs, videos, personal interests, and current activities (among other items). This influx of information regarding applicants would seem to be a great way to vet their ability to “fit in” with a company.

In fact, according to a study conducted by ExecuNet, an executive job-search agency, “75 percent of recruiters already use Web searching as part of the applicant screening process,”and “more than a quarter of these same recruiters say they have eliminated candidates based on information they found online.” An NBC News report showed that “over 77 percent of  employers uncover information about candidates online, and 35 percent of them have eliminated candidates based on the information they have uncovered.”

Thus, it is clear that businesses are, in fact, utilizing this resource. But, there are many potential pitfalls and risks (both practical and legal) in conducting this type of research, as discussed in more detail below.

Potential Legal Risks

Invasion of Privacy
Invasion of privacy is one of the issues most commonly cited by applicants who feel that employers should not be looking at their social networking profiles when making employment decisions. This is likely due to the fact that 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.” While there are no specific cases that have decided this issue yet, 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 in this information. On the other hand, if an employer hacked into a potential employee’s account or posed as someone else in order to “friend” the potential applicant and gain access to this information, the employer could certainly be setting itself up for a lawsuit.

TIP: If you have made the decision to utilize social networking information to vet potential applicants, use information that is generally available to the public rather than attempting to gain access through covert means.

Discrimination
Federal and state statutes generally prohibit discriminatory hiring decisions based on protected categories such as race, color, religion, sex, national origin, religion, age, disability, genetic information and military status. Some state and local statutes prohibit discrimination based on sexual preference, marital status, and other protected classes. The danger of conducting background checks of applicants using social media is that you may become aware that the applicant belongs to a protected category – something that through the general application process you otherwise would be unaware.

Once the employer views the individual’s social networking page, there is no going back. Both Facebook and MySpace provide user profile pictures that could automatically provide the employer with information concerning race, gender and age. Because users of these sites typically provide additional information about themselves, including their interests, there is a danger that you could become aware they are disabled, work in the military, have a family, etc. While the availability of this information does not inherently lead to discrimination, employers that make adverse employment decisions and have viewed an applicant’s social networking profile – whether or not they factored in any information – may find themselves subject to a discrimination claim.

In fact, most companies would not dream of asking an applicant in an interview or on an application form about his race, age, religious beliefs, etc. so that there is no potential for bias in the application process. This type of information, however, may be readily available on an applicant’s social networking profile. Thus, employers that make hiring decisions and have viewed an applicant’s social networking profile may find it difficult to defend against a claim of discrimination, because they are deemed to have known of and relied on this information.

Another particular risk for employers exists in the form of disparate impact claims if it was found that applicants who had a certain protected characteristic (i.e., race) in common were being systematically refused employment. Even if there is no disparate impact based on actual viewing of the profiles, there may be a disparate impact if the company tended to hire those who had social networking profiles rather than those who did not. This could occur because (while this is a generalization) social networks are comprised of younger, more affluent (i.e., those sophisticated with the use of the Internet) users.

TIP: If you find it necessary to use social networking profiles in your hiring process, it would be wise to insulate the decision maker from actually viewing the profiles. This can be accomplished by having another individual look at the sites and gather limited and particularized information regarding each applicant (i.e., whether or not the applicant has posted inappropriate photos, whether or not the applicant has or is working for a competitor).

The list of information collected also can be tailored to the specific company at issue. For instance if you are a large oil conglomerate, you might want to know if the applicant is involved in any groups that purport to be against “big oil.”

Fair Credit Reporting Act
While the Fair Credit Reporting Act may not come to mind when discussing searches of applicant profiles, it governs “employment background checks for the purposes of hiring” and applies if “an employer uses a third-party screening company to prepare the check.” Thus, if an employer is using an outside resource 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.

TIP: If you decide to use social networking information in your hiring decision, consider having these checks done within the business and not a third party to avoid claims under the Act.

Practical Risks

Backlash from Potential Employees
Most employees would like to think that what they do outside of work is off limits to employers and that their employer is going to allow them a private life. When a candidate with great po-tential is deciding which employer he or she would rather work for, there is a good chance that the candidate will pick the one who refrained from searching his or her social networking profile to look at what he or she considers personal. Although in today’s economy it is hard for applicants to be too picky, there will be a day when employees have more choices and likely will not choose the employer that is acting like “Big Brother.”

Identity, Authenticity and Accuracy of Posted Information
Perhaps the most serious problem with employers using social networking profiles as tools to investigate applicants is that the profiles they find are not always trustworthy or authentic. Although this may seem obvious, it can be overlooked. As an initial matter, 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), one cannot be sure that the  information provided is actually accurate. Perhaps the most tragic and well-known occurrence of this phenomenon occurred in Missouri where a mother posed as a child on MySpace. Her deception allegedly led to the suicide of a local youth. While mishaps in the employment context are not so grotesque, one could certainly envision unfortunate issues that could arise.

In fact, there is some evidence that applicants (knowing that the job market is very competitive and that businesses are utilizing social networking sites to make hiring decisions) have been creating fake profiles of other potential applicants and people they view as competition for jobs. Moreover, the problem with the use of these sites becomes compounded because employers are not required (unless they use a third party) to tell an applicant that information from the site was used to make the hiring decision or give the applicant an opportunity to correct any misinformation which was provided.

Conclusion

Although companies may find social networking sites useful, they should be wary of the potential risks associated with such use. These risks include potential litigation as well as employee backlash.

Note: This article was published in the September/October 2010 issue of The Employment Law Authority.


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