“Should employers be allowed to screen job candidates based on their online behavior even if their actions are not pertinent to t he listed job?” That was the query today from Washington Post financial columnist Michelle Singletary. For human resources (HR) staff, this is not a theoretical question; it’s a very real struggle.
The brave new world of social media presents a unique set of issues in hiring employees that will need to be navigated carefully, explained Attorney Daniel Schwartz of Pullman & Comley in Hartford, Conn., in Thompson Publishing Group’s Think Before You Click: Strategies for Managing Social Media in the Workplace. Can you Google applicants? Can you ask applicants for their Facebook passwords? Is there anything off limits when searching the Internet? For example, Singletary referred to a New York Times piece about a company that helps employers research the social media activities of prospective employees.
The answer to the question about whether social media use in the hiring process is legal is a great big “It Depends.” Schwartz noted that employers should stay constantly vigilant and make sure to keep up with the changes in social media as they develop. Understanding the laws that may apply is an important first step, he said.
Laws Applicable to Social Media and Hiring
All the anti-discrimination laws that exist apply to employers using social media for hiring, Schwartz noted. Thus, it remains illegal for employers to base their hiring decisions on race; an employer that screens applicants based on Facebook pictures — only looking for Caucasian applicants — would obviously violate both state and federal laws on the subject. So for example, employers should:
- Train managers on the ways in which information gleaned from social media and from conducting a Google search on a ca ndidate can lead to allegations of discrimination.
- Have a consistent approach to conducting Internet searches in order to reduce liability exposure.
- Provide hiring managers with ideas on how to get the information he or she is seeking to ensure that the best candidate is hired.
Some limited exceptions that may apply. Under some state and federal laws, it is permissible for employers to have a BFOQ — a Bona Fide Occupational Qualification, under which they can use the otherwise-protected information to make a hiring decision. However, this is a challenging area for employers, and HR human resources personnel should consult with legal counsel if a BFOQ applies, according to Schwartz.
Also consider the Genetic Information Nondiscrimination Act (GINA), which prohibits the use of genetic information in, among other things, hiring decisions. This prohibition specifically includes the conduct of Internet searches that are likely to result in obtaining genetic information, even if it is publicly available. But GINA regulations do contain an exception. If an employer “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue” (such as an employee who posts family medical history on his Facebook wall, and his supervisor, with whom he is a Facebook friend, sees it), GINA has not been violated.
Fair Credit Reporting Act
One approach to using Internet searches for job candidates appropriately is to delegate that responsibility to a third party or a non-hiring manager, Schwartz explained. Using this approach, the screener has a set of defined principles that are to be followed for each search. In this way, the employer can have a strong defense that its searches are not based on any protected characteristic and that it uses the same approach consistently.
Unfortunately, in solving one problem, the employer may have unwittingly created another, according to Schwartz. The Fair Credit Reporting Act (FCRA) may apply. It covers situations where an employer uses a credit reporting agency to seek information beyond just credit reports — including driving and criminal records, employment records and other public records.
Before obtaining any type of consumer report, an employer must:
- Make a clear and conspicuous disclaimer to an individual, in writing, in a standalone document (not as part of the employment application), that a consumer report may be obtained for employment purposes.
- Obtain the individual’s signed authorization to obtain the report.
- Employers that then use those reports to make an adverse employment decision (that is, not hiring the applicant) must then make a copy of those reports available to the applicant and give that person an opportunity to respond.
More from Think Before You Click tomorrow.