The exploding presence of online social media has users posting everything from photographs to personal comments. One of the most important intersections between social media and employment is in the hiring process. It is here where there are great potential risks and rewards.
But what types of postings can serve as make-it or break-it fodder for employers scouring prospective employees?
Attorney John Riccione of Chicago-based law firm Aronberg Goldgehn explains that there is a fine line employers should walk when using social media as a tool for hiring decisions.
"While the legal implications of using social media information during the hiring process have yet to be finalized, employees should follow basic etiquette when it comes to combing through cyber space," says Riccione. "Although it may seem like a handy way to learn more information about the candidate, it could backfire. For example, if an employer decides to reject a candidate after learning about federally protected statuses such as race, gender and disability, there's a possibility the company could face a discrimination lawsuit."
Riccione adds that while states such as Maryland, Wisconsin and several other states have taken the lead by placing restrictions on employers, there are a few basic guidelines all employers should follow:
- Consider unblocked postings, photographs or comments that would affect their ability to fill the job position as fair game.
- Give the applicant a chance to explain or dispute detrimental information that is found on social media sites.
- Use the internet to fact check discrepancies the candidate may have put forth, you may find they have lied on a resume.
- Document decisions. Print out the page containing social media content on which you base any hiring decision and record any reason for rejection, such as bad judgment. This protects you if damaging content has been deleted by the time a decision is challenged.
- Ask for passwords. In several states, employers cannot ask an applicant (or employee) for his or her social media password by law. In all 50 states, asking for an applicant’s (or employee’s) password creates a real risk of violating the federal Stored Communications Act (SCA).
- Use fake identities to gain access to social media sites.
- Unnecessarily infringe on the prospect's privacy by requesting their log-in information.
The Bottom Line: Invasion of Privacy
Applicants who feel employers shouldn't be looking at their social networking profiles, often claim that it’s an invasion of privacy. Many social networkers believe that what they do and post on social networking sites is private.
Under the law, a claim of invasion of privacy is almost exclusively based on whether an employee has “a reasonable expectation of privacy in the information viewed.”
Applicants who allow their profiles to be viewed by the general public would have a hard time demonstrating that they had a reasonable expectation of privacy.
On the other hand, employers can’t hack a potential employee’s account or pose as someone else in order to “friend” the potential applicant and gain access to this information. That would invite a lawsuit.
If you decide to seek social networking information to vet applicants, use information that’s generally available to the public. Don’t try to gain access through covert means.