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Don't Click Yourself Into a Lawsuit

Max Wesman leads Product, Design, Sales, Customer Success, Business Development, Corporate Development, and Project Management for Inflection, GoodHireMax Wesman leads Product, Design, Sales, Customer Success, Business Development, Corporate Development, and Project Management for Inflection, GoodHire
Strong relationships are built on mutual trust and fairness

How many times have you used Google or LinkedIn to look up someone you just met? Nowadays, researching a new contact or acquaintance online is practically expected.

If that person is a job candidate, though, trawling through their social media accounts in attempts to glean more personal information is not always advisable. In some circumstances, it can have legal ramifications.

At GoodHire, we’ve found the best candidate relationships are built on mutual trust and fairness. Does poring over a candidate’s social posts without their knowledge or permission feel like starting off on the right foot?

It’s certainly tempting to look up a potential hire on Facebook or Linkedin. 92 percent of companies are using social media for hiring and according to a 2017 CareerBuilder survey, 70 percent of all employers use social media to screen candidates before hiring, which is up significantly from 60 percent in 2016.

It’s easy to understand why. Looking into a candidate’s social activity is a free and easy way to get a better idea of the person’s online reputation. It seems like social media would provide a more detailed picture of the real person behind the polished resume and interview answers.

Yet these free and easy online searches can have real world implications for your relationship with the candidate and for your compliance with employment and nondiscrimination laws.

EEOC and FCRA Requirements still Apply, and Non-compliance can Lead to Legal Trouble

That more detailed candidate picture you’re seeking can end up causing you trouble. Hiring laws, particularly those enforced by the Equal Employment Opportunity Commission (EEOC), prohibit discrimination against job seekers on the basis of certain “protected characteristics,” such as race, gender, religion, age, or nationality. Although a resume might not disclose a candidate’s age or ethnic background, their Facebook page probably will. Even well-meaning employers or hiring managers can be subconsciously influenced by knowledge of these traits, which makes searching a candidate’s social media profile legally risky.
The authorities that enforce these rules are well aware of this potential avenue for discrimination, actual or alleged. According to the Poster Compliance Center, which provides information on developments in labor law, the EEOC has recently determined that “employers cannot discriminate against prospective or current employees based on their social media content. For example, employers cannot search for employees or candidates on Facebook to see their pictures and attempt to determine their age.”

Consider a case against a well-known US university (5:09-cv-00244), the university faced a Title VII claim after it decided against hiring an individual for a position as director of the university observatory. The applicant had more education and experience than the person who was hired but was still passed up for not having the "qualities" the university wanted. The applicant believed the employer's reason for not hiring him was pretextual, and he was actually not hired because of his religious beliefs that were displayed on his social media account.

The applicant was right to be suspicious. In fact, the hiring committee expressed concerns over some content he posted about his views and reviewed them at length with other university personnel. The case was ultimately settled whereby Gaskell was awarded $125,000. This left open the possibility that employers could be liable for failure to hire or wrongful termination claims if they consider a candidate or employee's protected characteristic that was revealed on their social media.

Balancing Social Screening Benefits and Risks

Am I saying you should never check out a social profile during the hiring process? Not necessarily. If you decide to, though, make sure to handle the search in a way that keeps you in compliance with EEOC guidelines and the Fair Credit Reporting Act (FCRA). There are resources that can help you do this. GoodHire’s General Counsel, Elizabeth McLean, for example, has produced a thorough guide to the key considerations around social media screening, helping employers understand hiring laws and avoid legal pitfalls.

Some employers will continue to “cyber vet” applicants when making hiring decisions. While there may be benefits to the detailed glimpse into the lifestyle, decorum, personality, and views of applicants, there are considerable downsides and risks to this approach. With more access comes more exposure to protected information. And when using a third-party social media screener, FCRA obligations are triggered. The accuracy and necessity of social media information will continue to be debated. Employers should consider the risks involved in such screening and determine whether those risks are worth the reward.

It comes down to this: Know the risks, then decide whether the extra information you can glean from social media screening is really worth it. A background check that consists of employment and education verification, criminal background checks, and professional reference checks, for example, may be a better option for a more accurate read on whether your candidate is going to be a valuable and trustworthy addition to your team.
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