A version of this article was originally published in the September 2014 issue of The HR Specialist. It is reprinted here with permission.
No employer wants its employee’s bad behavior at work to become the next viral video. So it is not surprising that more employers have started using social media in the hiring process to screen out candidates who post inappropriate photos or remarks to Facebook, Twitter, and other social media sites. Some employers also utilize social media to verify an applicant’s credentials, see the applicant’s professional network, or just get an overall feel for the applicant’s personality.
The Internet’s broad accessibility and low cost makes it easier for corporations to do social media research in house. But some employers elect to pay outside companies to run social media background checks, just as they do when wishing to get an applicant’s criminal background or credit report. Social media background checks are legal if done properly, but what are some of the legal issues that should be on an employer’s radar?
Discrimination Claims
Federal and state laws prohibit employers from discriminating based on race, color, religion, sex, national origin, disability, and other protected characteristics. Looking at an applicant’s social media presence may reveal information related to protected characteristics not requested in well-vetted job applications or gathered through the usual interview process. Having a decision maker personally access social media information during a benign search could increase legal risks and allow for viable failure-to-hire claims.
For example, if a manager discovered through LinkedIn that an applicant won a scholarship from the Islamic Scholarship Fund, that could be a problematic if the prospective employee later claims he was not hired because of his religion. Even if such knowledge played no role in the hiring manager’s determination, the company is imputed with knowledge of all data in the candidate’s profile. Similarly, the same would be true if, for instance, the company learned that a prospective hire was pregnant after a Google search of her name revealed her baby shower gift registry at a local store.
Employers may be able to lessen the risk of potential liability by isolating the ultimate decision maker from unwanted or irrelevant social media data. That way if the applicant’s social media profile does contain information related to a protected characteristic, the background checker (or independent outside vendor) can filter out that material and report only on information or facts the hiring person has identified in advance as relevant or material to the hiring decision. Doing so would allow the employer to more easily prove that the protected characteristic did not influence its hiring decision.
NLRA and Protected Activity
Gathering social media intelligence to make employment decisions may also raise issues under the National Labor Relations Act (NLRA). The NLRA protects employee communications related to “concerted activity for the purposes of collective bargaining or other mutual aid or protection.” Even employees in non-unionized companies have a right to engage in concerted activity. The NLRA prohibits employers from conducting surveillance of protected concerted activities and making employment decisions based on whether an applicant leans “pro-union.” The Act can also be said to prohibit activities that “impact” employees by encouraging or discouraging union activity or that interfere with, restrain, or coerce workers in the exercise of their guaranteed rights.
Messages, posts, or tweets complaining about wages, hours, or work conditions could be considered protected concerted activity if they raise group complaints or call other employees to action. Employers therefore need to be careful before factoring an applicant’s online posts or complaints about former or current employers into an employment decision. If such commentary is later adjudged as constituting protected activity or impermissible “surveillance” having an impact on union activity, the employer could be charged with an unfair labor practice or be otherwise liable for violating the NLRA.
Consent and Disclosure Requirements
Companies that opt to outsource their background checks on applicants to third parties should be aware that a report on an applicant’s social media presence is treated the same as traditional criminal background checks or credit reports. This means that under the Fair Credit Reporting Act (FCRA), applicants have certain rights if an employer uses a company in the business of compiling background information to obtain a background check (or if such information is requested or included as part of a traditional criminal/background inquiry). Applicants must be notified and consent in advance and the FCRA’s standard pre- and post-adverse action procedures must be followed. However, the FCRA notification and consent requirements would not apply if the employer searches the applicant’s social media itself.
Practical Pointers
Uniformity in the application and execution of social media research is important. Employers should be careful to screen social media data consistently and treat all applicants alike. Companies should ensure that candidates go through the same research methodology and are exposed to the same level of thoroughness by selected in-house personnel or outside vendors. Generally speaking, asking an applicant for his or her password in order to access private social media profiles or other password-protected sites is not only discouraged but may even be illegal in some states. Having a policy on background investigations for new hires and current employees could assist any company in maintaining consistency and avoiding the many traps and risks associated with this developing area of law. Employing these techniques will not totally immunize a company from a discrimination or failure-to-hire lawsuit, but it will certainly aid in the creation of a solid defense.
