Robert C. Hinton
Fairfield County Business Journal
March 20, 2017
This article originally ran in the March 20, 2017 issue of the Fairfield County Business Journal and is reprinted here with permission.
It is not surprising that a recent survey released by the Society for Human Resource Management revealed that a growing number of employers are using social media both to hire and to disqualify job candidates. Social media sites have become a fertile source of information for employers. However, there are both advantages and disadvantages to using social media to screen job applicants. Employers that use social media to screen applicants should be mindful of legal risks and proceed with caution.
Hiring an employee can be both costly and time-consuming. Hiring the wrong employee can have substantial negative ramifications for an employer. Screening a job applicant on social media can help the employer obtain relevant information that enables the employer to make a more informed decision on hiring. It makes sense, therefore, for employers to use social media to discover relevant information about an applicant.
There are a myriad of items that can be found through social media that could justifiably be used to disqualify a job applicant. For example, disqualification would be appropriate if a social media search uncovered that a job applicant had posted racist jokes or posted information about illegal drug use or child pornography. Indeed, a person’s social media presence can raise all sorts of red flags that can either immediately trigger disqualification of the candidate or warrant further investigation.
On the other hand, social media screening may not only uncover negative qualities or red flags about an applicant but can also be used to discover positive attributes that were perhaps not displayed on the applicant’s resume. For example, an applicant’s commitment to community service or volunteerism efforts might be gleaned from a social media profile. Social media can also help an employer get a better sense of whether the applicant would be a good fit within the company’s culture.
Notwithstanding the pros of using social media to screen job applicants, there are a number of pitfalls that employers should be aware of.
First, employers must be mindful not to violate the applicant’s privacy settings. There is generally no question that public information is fair game when it comes to hiring and firing and that employers may access social media sites that are freely and openly made available to the public. Problems arise, however, when an applicant’s social media profile is set so that only “friends” can view the profile’s content. Companies that attempt to circumvent the privacy setting in order to access the applicant’s profile are encroaching on the applicant’s privacy rights and likely exposing themselves to potential lawsuits.
It is also unlawful for employers to require job applicants to provide their passwords or login information so that employers may access their social media platforms.
In 2015, Connecticut joined the ranks of 20 other states by enacting a law limiting an employer’s ability to access the personal social media accounts of job applicants and employees. The law prohibits an employer from requesting or requiring an employee or applicant to provide the employer with a user name and password, password standing alone or other means of authentication for accessing a “personal online account.” The law also forbids an employer from requesting or requiring that an employee or job applicant authenticate or access a personal online account in the presence of the employer – “shoulder surfing,” that is – and from requiring that an employee or applicant “invite” the employer or accept an invitation from the employer to “join a group affiliated with” the personal online account of the employee or applicant.
Employers may, however, monitor, access or block electronic data stored on an electronic communication device paid for in whole or in part by the employer.
Perhaps the biggest risk of social media screening is that it could reveal protected information about an applicant that cannot be taken into account in making hiring decisions.
For example, an employer may learn about the job applicant’s race, age, gender, religion, pregnancy, national origin or disability status, which in turn, if the applicant is rejected, may expose the employer to a discrimination lawsuit. Indeed, once an employer learns of such protected information, an employer can’t unlearn it. The employer can therefore be accused of using that protected information in making a hiring decision.
In order for employers to insulate themselves from these types of claims, they should utilize third parties to screen applicants based on specific criteria for the job. Upon the discovery of protected information, the third party relays only relevant, legally permissible information to the employer or decision maker.
For example, if the third party learned on social media the applicant’s age or pregnancy, that information would not be passed on to the employer or hiring decision maker, while other job-related information would be reported.
Despite such efforts, the propensity for social media platforms to be surreptitiously used by employers to ascertain a job applicant’s race, religion or personal views should not be taken lightly. There is at least one study that demonstrates that concerns about employers using social media to discriminate against job applicants might be justified.
Carnegie Mellon University conducted experiments to examine the impact that information posted on social media sites by job applicants can have on employers’ hiring decisions. The study involved dummy resumes and social media profiles for fictional job applicants, striving to make them identical, except for indications of religious affiliation – listed as Christian or Muslim – and sexuality – listed as gay versus straight. The researchers designed the applications and social media profiles so that the only way to determine the candidate’s religious preference or sexual orientation was to search for that information on the social media profile.
Interestingly, while the study found no statistically significant discrimination against gay candidates, the study did show that applicants whose Facebook profiles indicated that they were Muslim were less likely to be called back for interviews than applicants whose Facebook profiles indicated that they were Christian. The study serves as an effective reminder of how information gleaned from social media has the potential to be used to discriminate against job applications and that employers should guard themselves from doing that.
Many now consider the use of social media in screening job applicants to be mainstream. Social media, if accessed and used properly, can be a valuable resource to employers in gaining additional information to make more informed hiring decisions. Employers should recognize, however, that there are legal risks in so doing and proceed with caution.
Robert C. Hinton is an attorney in the labor, employment law & employee benefits department in the Hartford office of Pullman & Comley LLC, a law firm with Fairfield County offices in Bridgeport and Stamford and a New York office in White Plains. He can be reached at firstname.lastname@example.org or 860-424-4346.