Microsoft recently released research results (according to the January 2010 report, Microsoft commissioned the research, and the study was conducted by a third-party marketing company, Cross-Tab) showing that 79 percent of the surveyed hiring managers and recruiters in the U.S. had considered online information about job applicants as part of the hiring process. Of those who considered online information, 70 percent said they have rejected candidates because of what they found.
Of course, employers often find a wealth of information about a candidate on Facebook, Twitter, and other social media websites. Employers want the best fit for the organization and the particular position, and online information may help in that process. Best of all, the information is convenient, easy to access and free! Through online research, many employers have identified misrepresentations made during interviews or stated on applications – for example, employers have found inconsistencies between submitted resumes and LinkedIn profiles. In fact, some commentators have argued that employers actually have a duty to check candidates’ online presence to minimize risks of later negligent hiring claims.
While online research offers these potential benefits, employers should also consider the concurrent risks. For example:
Discrimination. Online profiles often reveal information about a candidate’s protected class – information to which employers may not otherwise have access. Social networking profiles often include information such as a user’s religious beliefs, age, race, gender, sexual orientation, disability, military status, and on and on. Protected information may appear in the form of photos or videos rather than text. Information related to a user’s protected classifications may also appear in geolocation information. (Geolocation information reports GPS data about a user’s location, often from a web-enabled phone, iPod, laptop, etc.) Such services are becoming increasingly popular, and may reveal trips to a union meeting, a church, the hospital, a gay bar, or other locations suggesting a protected characteristic or activity. Although online research may give an employer a legitimate reason to reject an applicant, the employer is not able to filter out this other, protected, information that may not properly be used to support an adverse hiring decision. If an applicant learns a company reviewed his or her online profile, the employer may find itself having to prove it did not rely on anything improper when it chose not to hire the candidate.
Invasion of privacy. Depending on the circumstances, reviewing online profiles could lead to an invasion of privacy claim under various federal or state laws. For example, employers generally should avoid using false information or someone else’s login information (i.e., asking an intern or other subordinate to log in on behalf of a manager) to gain access to a candidate’s online profiles or groups. Even if an employer finds a legitimate reason to reject an applicant, the company should ensure it does not incur liability in the way it goes about finding that reason.
Fair Credit Reporting Laws. Employers using an outside agency to conduct background checks on candidates may need to follow certain consent and disclosure requirements of federal or state fair credit reporting laws.
State or Local Laws. Employers should consider the implications of state laws or even local ordinances. The same factual scenario may be illegal in one location and not in the next. Consider state laws that may go further than their various federal law counterparts. For example, Title VII does not protect sexual orientation and gender identity, but the Iowa Civil Rights Act does. Also consider differences from one state to the next. For example, the Iowa Civil Rights Act does not protect marital status in employment, but the New York statute does. Some states also have statutes that prohibit discrimination based on legal off-duty conduct (for example, a Facebook photo may picture a candidate smoking, but many states make it unlawful to refuse to hire a candidate because he or she smokes cigarettes). If an employer recruits candidates located in other states, or to fill a vacancy in locations outside of Iowa, off-duty conduct statutes may seriously limit an employer’s lawful reasons for rejecting a candidate.
Practical considerations. Online profiles often contain inaccurate information, inside jokes that may be easily taken out of context or misunderstood, and a user may have little control over the information on his or her “wall” or message board.
This above list is not, of course, all-inclusive – and new issues crop up daily. Employers should carefully weigh the risks and benefits of incorporating social networking checks and other online research into its screening and hiring process.
Soon to come: a follow-up post on employer policies to address the use of social media in hiring.
If you have questions about the use of social media in the hiring process, please contact attorney Megan Erickson at 515-246-4538 / merickson@dickinsonlaw.com or another member of the firm’s Employment and Labor Law Group at employmentlaw@dickinsonlaw.com. For more information on social media and the law, see Erickson’s Social Networking Law Blog.
