John Smith, the president of a small technology company, interviewed a potential candidate for a sales position with his company three times. Smith collected the candidate’s resume, checked and double-checked the candidate’s qualifications, called all the references and, as a last step of due diligence, he does an Internet search for the candidate’s name.
During the search, Smith stumbles across the candidate’s Facebook, LinkedIn and Twitter accounts and decides to check those out as well. Through the applicant’s Facebook page and Twitter stream, Smith learns the candidate has a past history of being late for work and drinking too much at work functions. These are obvious red flags. But inadvertently through the candidate’s Facebook page, Smith also discovers information about the candidate’s race, religion, political views and sexual orientation. Smith decides not to hire the candidate.
Has Smith broken any laws? Could his firm face potential litigation from the denied candidate?
Social media has changed the way most companies do business and the way people obtain information – professionally and personally. It has seeped into every industry and every profession.
More information about more topics and more people is only a mouse click away, which is why these platforms can be almost irresistible when it comes to screening potential candidates for a job.
According to a recent study by Milwaukee-based Manpower Inc., nearly 70 percent of human resource and business professionals surveyed are using social networking platforms. Facebook usage was the most prevalent among HR and business professionals at 60 percent, followed by LinkedIn, which came in second at 34 percent.
In 2009, The Wall Street Journal published a survey that indicated 45 percent of employers used social media to screen potential job candidates, said Mark Toth, chief legal officer of Manpower North America. Toth expects that that percentage has risen since then.
“A lot of people are using social media platforms to find out about potential candidates’ backgrounds,” Toth said. “More and more, we find employers going to Facebook and a variety of other social media sites, to try and take shortcuts in the investigative hiring process.”
According to Toth, there are two very apparent ways employers can get into trouble using social media platforms during the candidate screening process.
“It comes down to two tests: Is the information you are finding relevant to the job you are hiring for and is it factual?” Toth said. “A lot of things on the Internet aren’t necessarily true, and sometimes employers can get into trouble because they’ve latched on to something as fact when in reality it could be allegations made by a third party. It’s definitely important to deploy some good old-fashioned diligence in screening potential candidates.”
Employers often like to make hiring decisions with more information, rather than less, said Dan Kaplan, a partner in the Madison office of Foley and Lardner LLP’s labor employment practice group.
“Social media platforms have given employers new resources to turn to in order to find out more information on their applicants, but it is really a double-edged sword,” Kaplan said. “Employers have always been told that on an employment application they shouldn’t ask for certain information that isn’t directly related to making an employment-related decision. The same should be true for the use of social media in the screening process, except that information is sometimes obtained even if you weren’t looking for it.”
Under federal law, employers aren’t allowed to ask questions or make hiring decisions based on a person’s race, gender, religious affiliation, national origin, disabilities, age, sexual orientation or a variety of other characteristics.
“Using specific social media platforms means that nobody has to ask those questions. That information is readily apparent either through information supplied by the candidate or through photographs discovered on the site,” Kaplan said. “Whether or not the employer was looking for that specific information, which they probably weren’t, they are now aware of it and need to walk a fine line on what can be utilized in a legitimate manner for making employment decisions.”
Kaplan cautions that a disgruntled candidate who does not get hired could potentially make the claim that he or she was discriminated against for certain characteristics found on a social media site.
“A company’s best defense is that they had no knowledge of such characteristics when making the decision,” said John Kalter, shareholder in Godfrey & Kahn’s labor employment practice group. “If you are using social media platforms to screen your candidates, it will be hard to differentiate the information you used in the decision-making process and the information you inadvertently obtained.”
Kalter suggests it might be easiest to simply avoid using social media platforms in the screening process altogether.
“I think a lot of companies have viewed it casually up until this point,” Kalter said. “More and more, we are seeing cases about the legality of such practices, and I think companies are going to start to look at some of the ramifications their actions could bring.”
Adversely, another risk of using social media platforms in the screening process is the relative accuracy of the information available. Kaplan cited an example of missing out on a well-qualified exceptional candidate because information found on a social networking site was taken as fact when in reality it could have been falsified information or even a different person all together.
Tom Godar, a shareholder in the Madison office of Whyte Hirschboeck Dudek’s Labor & Employment office, agreed.
“One of the great unwashed risks is deciding what’s true and what isn’t,” Godar said. “By obtaining information on the Internet about potential job candidates, you have to first decide if it is the right identity you are searching for and if the information there is completely accurate.”
Establish policy
Despite the risks, if a company is going to use social media platforms to screen potential job candidates, there are measures to take that can avoid potential litigation at the hands of a disgruntled candidate.
“We don’t necessarily look at (the use of social media platforms) as something to avoid,” said Jessica Ollenburg, president and chief executive officer of Brookfield-based HRS Inc., an employer resource for HR Management and organizational development solutions. “It can be a fabulous business tool if the correct policies are in place to define proper utilization.”
Company social media policies are not one-size-fits-all and should be customized to apply to the usages for each company, Ollenburg said.
“The good thing about implementing a policy is that it forces a company to sit down and think through what its approach to these kinds of issues will be,” Toth said. “The mistakes companies make when implementing these policies are usually that they have a policy that is out of date, that is overly broad or overly narrow and that they don’t enforce consistently.”
Information gathered during the hiring process, through social media platforms or otherwise, should strictly be limited to information needed to determine a candidate’s qualifications for the job, Toth said.
“In order to search for that information, it is important for a policy to require there be a written description of the job,” he said. “Start with a job description. What are the essential functions of this job? Maniacally focus on those qualifications when you are screening applicants either traditionally or using social media platforms.”
To comply legally, consistency is the most important protection for a company, in regards to technology, Internet usage and social media, Ollenburg said.
HRS has designed legally compliant empirical score matrices for particular clients that allow companies to screen potential candidates using a standardized method of evaluation rather than relying solely on subjective information found on specific social media platforms, she said.
“We are huge advocates about avoiding the legal argument up front,” Ollenburg said. “We recommend that if a client is going to be using social media platforms to screen candidates on a consistent basis that they be up front and address those issues in a policy or go one step further and inform potential candidates of those sources that may be used in a traditional (or nontraditional) background check.”
Kaplan also recommends an employer obtain authorization from a potential candidate to explore a social media background check as a possible way to avoid future litigation.
“I think any company that is going to utilize social media for purposes of conducting a background screen on applicants needs to recognize the potential pitfalls for doing so, as well,” Kaplan said. “To minimize the risk of those pitfalls, it may be better to directly obtain a signature of an applicant similar to a traditional background check. Say to them, ‘We’ve taken to utilizing social media as a means of conducting a background screen. Do we have your permission to check your social media site for those purposes?'”
What is private?
The emergence of social media also has changed the way the lines between business and personal lives are drawn.
“While it is certainly the responsibility of the employer to apply context to the information they gain from a social media site and also to check and double-check the validity of such information, it is also the responsibility of potential candidates to get educated on the fact that everything they put online is essentially permanent,” Toth said.
HRS tries to educate employees and students on the correct use of social media and the potential individual risks of posting the wrong kind of information, Ollenburg said.
“Our first tip for everyone is always to educate on what appropriate and inappropriate social media use looks like,” she said. “For employers, that definition also has to come with measurable standards and guidelines that outline clear consequences for inappropriate use, but the first step is always education.”
Legislation has not caught up with how quickly social media is changing the business world, Toth said.
“What usually happens is that lawsuits shape the law more than Congress in these situations,” Toth said. “Because it’s changing so quickly, it’s hard for lawmakers to even think about what to do.”
What individuals would typically associate with employee (applicant) privacy rights do not necessarily apply to the Internet or social networking sites, Kaplan said.
The federal Fair Credit Reporting Act requires a company to disclose to a candidate whether or not a third-party resource will be doing a background check as part of the application process.
“Authorization does not need to be obtained if the background check is done internally, and there is no law that says you have to disclose whether or not you are using social media sites in your search,” Kaplan said.
What is more likely to come up in litigation is how the company obtained the information, he added.
“If a private employer obtained access to a social media site fraudulently, either by hacking into an account or pretending to be someone else in order to gain access to additional information, that might be considered an invasion of the candidate’s privacy expectations,” Kaplan said.
However, the expectation of privacy comes from outdated thinking, Godar said.
“If someone does an Internet search for my name and a bunch of published newspaper articles come up, I’m OK with that, because I should have never expected those were going to be private anyway,” Godar said. “The reality is that the same thing can happen with social media sites, and if I’m willing to put potentially detrimental information out there, there should be some level of responsibility on my part to realize anything that can be found in that manner blurs the lines of privacy.”
Still, addressing the expectation of privacy either upfront with a potential candidate or in a company policy is the best way to minimize the risk of potential litigation, Kalter said.
“Because social media is so prevalent in today’s world, and the lines haven’t been clearly drawn in regards to privacy expectations, my suggestion is to lower the expectations of privacy from the onset,” Kalter said. “Tell the applicant up front that social media sites may be used in a background check and outline in your social media policy that company equipment, e-mails and server Internet usage is subject to occasional screenings as well.”
