Law Practice Today | September 2013 | The Staffing/HR Issue
September 2013 | The Staffing/HR Issue
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The Dos and Don'ts of Conducting a Legal, Yet Helpful, Social Media Background Screen

By Sara H. Jodka

Social media has infiltrated most aspects of the employer/employee relationship.  It now impacts recruitment, the drafting of employment policies, employee communications, complaint reporting and investigation procedures, employee discipline considerations, and what employers look at when make hiring decisions.  In fact, in 2011, the Society for Human Resource Management (SHRM) found that  56 percent of employers reported using social media in hiring.

In June 2013, a nationwide survey by CareerBuilder found that more than two in five hiring managers (43 percent) who vetted applicants online did not hire an applicant based on information found online.  The top reasons for disqualifying a candidate:

  • 50 percent—Posting provocative/inappropriate photos or information;
  • 48 percent—Posting about drinking or using drugs;
  • 33 percent—Badmouthing a prior employer;
  • 30 percent—Bad communication skills;
  • 28 percent—Making discriminatory comments related to race, gender, religion, etc.;
  • 24 percent—Lying  about qualifications.

On its face, this 43 percent figure appears inconsistent with On Device Research’s recent report, which found that one in 10 people between 16 and 34 years of age reported being rejected from a job because of content about them on social media.  The inconsistency between the 43 percent of hiring managers who reported eliminating candidates based on social media content and the 10 percent of young people who reported they were rejected because of social media is probably best explained by the fact that most employers do not inform an applicant why he or she has been rejected.

An example of the rare case where an applicant was told his social media antics cost him a job is Hunter Monk.  Before sitting down for a Skype interview with an investment firm, Monk tweeted a picture of himself dressed for his interview. He was wearing a suit and tie on top and only underwear waist down.  The employer saw the picture on Twitter and rescinded Monk’s job offer and told Monk why.

Social media vetting is not all bad for applicants.  CareerBuilder also reported that one in five hiring managers (19 percent) found information online that made a candidate more attractive or solidified their decision to extend a job offer.

In an interesting juxtaposition, North Carolina State University released “Big Five Personality Traits Reflected in Job Applicants' Social Media Postings,” that shows that companies that screen applicants via social media may misunderstand online behavior, causing them to eliminate good candidates.  Of the personality traits reviewed (which included conscientiousness, agreeableness and extraversion), the study found no significant correlation between conscientiousness and an individual’s willingness to post content on Facebook about alcohol or drug use.  As a result, some employers likely eliminate good, conscientious candidates based on a false belief about what social media activity says about applicants.  This is especially true for companies looking to hire extroverts, as the study found them significantly more likely to post about drugs or alcohol on Facebook.  The study did note one interesting correlation:  those who rated high on agreeableness and conscientiousness were unlikely to “badmouth” or insult other people on Facebook.  This indicates employers would be better served by eliminating candidates for badmouthing others, and not necessarily those who drink alcohol. 

Misinterpreting information is just one risk employers face when vetting applicants through social media.  Another is the potential to uncover information the employer is prohibited by law from considering in the hiring process, like information about the applicant’s race, gender, religion, or membership in some other protected class.  If an employer obtains this type of information online, the cat is out of the bag.  There is no way for the employer to un-see it and, more importantly, it is hard for the employer to demonstrate it did not use the prohibited information in its hiring decision.

In Gaskell v. University of Kentucky, No. CIV.A. 0909-244-KSF (E.D. Ky. Nov. 23, 2010), the plaintiff successfully argued that the university denied him employment based on his religious affiliation, which it discovered online.  In Gaskell, the university was searching for a director to oversee its new observatory.  A member of the search committee researched the plaintiff online and discovered he had written an article on astronomy and the Bible.  The committee member believed the article was evidence of plaintiff’s Christian faith and belief in creationism.  In an e-mail, the search committee member wrote: “the reason we will not offer [plaintiff] the job is because of his religious beliefs…”  Plaintiff was denied the job and sued for religious discrimination.  The email was used by the court to deny the university’s motion for summary judgment, and the parties eventually settled.

In Neiman v. Grange Mutual Casualty Co., No. 11-3404 (C.D. Ill. April 26, 2012), the plaintiff alleged he was not hired because of his age.  The employer argued it could not have considered the plaintiff’s age because it did not know it when it made its decision.  The plaintiff, however, countered that the employer must have known his age because he posted his college graduation year on his LinkedIn profile.  This was enough to get the plaintiff past the employer’s motion to dismiss:

Plaintiff alleges…that during telephone interviews, [the company] did inquire about and confirm the year that Plaintiff and the candidate who was selected for the position each earned their degrees….It is not difficult to determine that someone who graduated from college in 1989 probably was over the age of 40 in 2010. This is enough to place [the company] on notice that [the plaintiff] is subject to the protection of the laws against age discrimination.

Social media vetting also poses a unique risk for employers under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff-1(a).  GINA prohibits employers from obtaining an applicant’s “genetic information,” defined to include information about an individual’s family medical history.  The final regulations provide that an employer may not “request…genetic information of an individual or a family member of the individual.”   29 C.F.R. § 1635.8(a).  The regulations specifically address the Internet, and define “request” to include “conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information.”  Id.  Since the definition of “request” is so broad, GINA poses a significant risk to employers that may inadvertently obtain “genetic information” when using social media to vet applicants. For example, what if a hiring manager learns from an applicant’s public Facebook page that the employee is running in the Race for the Cure to support her mother who is suffering from breast cancer?  The hiring manager has just learned the employee has a family history of breast cancer and has obtained protected “genetic information.”  In cases like this and others, the regulations provide two exceptions:

  1. The Inadvertent Acquisition Exception:  If, through authorized access on a social networking site, like a public profile, an employer obtains an applicant’s genetic information, the employer does not violate GINA.  If, however, the employer then probes further and asks the individual questions to elicit genetic information, the exception is lost.  29 C.F.R. § 1635.8(b)(ii)(D). 

  2. Commercially and Publicly Available Exception:  If an applicant’s genetic information is  commercially and publicly available, an employer is not liable if it obtains it from a general internet search.  This exception, however, does not apply to websites that require permission to access an individual’s information, or where access is conditioned on membership in a particular group, unless an employer can show access is routinely granted to all who request it.  This exception also does not apply where an employer seeks access with the intent to obtain genetic information. 

With the high risk of uncovering prohibited information and of improperly using social media information, employers should take a few precautions to perform legal, yet helpful, social media background screen.

  1. Don’t Do Online Searches Yourself.  Do Hire a Third-Party Vendor to Conduct the Social Media Search.  The easiest way to avoid stepping on a discrimination landmine is to have someone else do the social media search.  In 2011, the Federal Trade Commission approved third-party Internet screening.  The caveat, if a third party conducts a screen, is that the Fair Credit Reporting Act (FCRA) is triggered, and so are an employer’s obligations under it (e.g., disclosure, authorization, adverse notices.)  A third party will go so far back (usually seven years) and search for items the employer deems relevant for identifying good candidates, including, aggressive or violent acts, unlawful activity, discriminatory activity, and sexually explicit activity, among others.  It also gathers information about an applicant’s accolades.  Most helpful, a third party’s web-crawler system can typically review more webpages than an individual hiring manager tapping away at individual websites like Facebook and Twitter.

  2. Do Have a Written Policy in Place. Don’t Stray.  If an employer chooses to use social media to vet applicants, it should have a written policy outlining specifically how it will conduct the search.  In it:

    Build a Firewall or Information Barrier:  A social media hiring policy should include a wall between the person conducting the search and the decision maker.   By separating the research and decision functions, employers lower their risk for a discrimination claim exponentially. If a decision maker does not know an applicant’s protected characteristic, it is impossible to consider those characteristics in the decision-making process to discriminate against the applicant.

    Identify Websites That Will Be Searched and For What:  Employers should identify which social media sites will be reviewed during the research process, and what criteria will be considered in the hiring process, e.g,. talking bad about others, aggressive or violent acts, unlawful activity, discriminatory activity, and sexually explicit activity, among others.  The only caveat here is that employers should ensure the items screened correlate with the candidate’s fitness for the job. 

  3. Do Inform Applicants You Will Be Conducting a Social Media Search. Don’t Ask for Passwords.  Employers should inform applicants they will be looking into their social medial presence and identify which sites.   If a third party is doing the search, the employer must make the necessary disclosures and obtain the applicant’s consent under FCRA.  The employer, however, should not ask applicants for log-in credentials or passwords.  This practice is not only illegal in 12 states (Arkansas, California Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington), but it may force a job applicant to violate the site’s terms and conditions of use, because many social media sites prohibit users from sharing log-in information.  In addition, this practice may discourage good candidates from continuing the hiring process, because applicants may not want to work for an employer they believe is violating their privacy.

  4. Do Document. Don’t Rely on Your Company’s Social Media Policy.  Use a template or otherwise document each step of the hiring process, which includes documenting the social media search performed and results obtained. In accordance with legal obligations, employers must retain hiring documents for many years.  This documentation also comes in handy in defending discrimination suits.  For example, if a former applicant claims he or she was not hired due to a protected characteristic the employer gleaned from social media, the employer can show that the information was never obtained, much less reviewed.  If the employer no longer has the social media research trail, the employer is at a disadvantage and must use other means to defend the claim.  Employers, however, should not rely on their social media policy in the hiring process. Social media policies do not apply to applicants, only employees.

  

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About the Author

Sara H. Jodka is an attorney with Porter Wright Morris & Arthur LLP in Columbus, Ohio.  She can be reached at 614.227.2060 or sjodka@porterwright.com.


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