Companies are increasingly trolling social media for information to assist in hiring decisions. While it may seem like a cheap and easy tool, it’s risky business. Nevertheless, companies are doing it more than you think. A recent CareerBuilder poll found that 43% of employers use social networking sites to research job candidates; and that 51% of those companies found something in social media that caused them to reject a candidate.
Some of the content posted on social media that caused employers to pass on a candidate include:
- provocative or inappropriate photographs
- information about alcohol or drug use
- bad-mouthing previous employers or co-workers
- poor communication skills
- discriminatory comments related to race, gender, religion, etc.
- falsified qualifications
- confidential information from previous employers
- criminal behavior
- unprofessional screen names
- lying about absences
So, while an employer may, on occasion, come across that (hopefully) rare applicant whose Facebook boasts of the blunt he just rolled, sleeping on the job or skiing in Vermont while on disability leave, the risks still outweigh the benefits.
First, disqualifying applicants because of their social media content can limit the number of qualified candidates based on information having nothing to do with potential job performance. Some states like New York, for example, have laws prohibiting discrimination in employment based on political or lawful recreational activities.
Also, the Fair Credit Reporting Act – a federal law governing consumer reports and background checks – may be implicated if an employer contracts with a third party to review candidates’ social media posts.
Another corporate policy that has garnered some recent attention requires applicants or employees to divulge their social media login credentials. A number of states have enacted laws specifically banning this rather invasive practice (Maryland, Illinois, California, Arkansas, Colorado, New Mexico, Oregon, Utah, Vermont, Washington, Michigan, Nevada, and New Jersey) and many others, including New York, have similar statutes in the legislative pipeline.
Reliance on information revealed on social media websites can also lead to claims of unlawful discrimination. There’s a reason questions concerning an employee’s race, religion, national origin, marital status, sexual orientation, disability, etc. aren’t asked (or at least shouldn’t be) on applications and interviews – they could serve as evidence of discriminatory intent.
Clearly, social media posts often disclose information pertaining to those protected categories. And, while it may be difficult to prove that a company rejected a particular applicant based on information obtained from social media sites, forensic experts can parse a company’s online search history and reveal patterns that support an inference of discriminatory hiring practices.
For example, evidence that an employer’s Facebook searches were directed at information about the health of an applicant’s family members could be evidence of a violation of the Genetic Information Nondiscrimination Act (“GINA”).
So while employers face risks, they will continue to scope out social media posts to vet job candidates.
Do you suspect social media posts may have cost you a job opportunity? Have you had any experience with your job and social media?
Ralph A. Somma, a Long Island, NY employment lawyer, handles workplace law cases. Contact Ralph here for a FREE telephone consultation.
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