The Internet has revolutionized the way employers and employees interact.  We’ve all heard shocking stories about current employees being fired because of behavior on social media websites.  However, the delicate social media etiquette and protocol dance applies to relationships between companies and job applicants as well.  Indeed, social media has become an excellent place for future new hires to project their skillset and desirable traits—essentially marketing their skills (and themselves) to potential employers the world over.  Likewise, those websites and mobile applications have also become attractive tools with which employers can headhunt and even screen out the undesirables.  Believe it or not, this is not a new trend.  Companies have been using social media to screen new hires for quite some time.

In fact, in 2009 two in five employers routinely used social sites like Facebook, Twitter, LinkedIn, and even Tumblr to pre-screen job applicants.  That’s according to the results of a survey, which discovered that a full 39% of companies used social sites as tools for sorting candidates during the hiring process.  Nearly half of those companies found something (either good or bad) that directly affected their decision to offer employment.  Some examples include: demonstrated excellence in communication, understanding of media marketing and applications, and links to examples of industry prowess.  On the other hand, these companies also uncovered the darker side of their potential employees including cases of provocative or inappropriate photos and/or discriminatory comments.  In fact, a more recent study showed that 1 in 10 individuals lost out on a job offer because of something uncovered on their social profiles.

Fast forward to today and Entrepreneur puts the number of employers who use social media screening closer to 50% while other sources (including AOL) say it’s more like 90% (variations are likely due to sample size and industry). Regardless of the actual numbers, it’s clear that more and more companies are turning to social media to help in the hiring process.

It’s important for employers to understand the potential legal ramifications for inappropriately using social media to screen potential hires. As FastCompany notes, using social media to screen applicants “can get you sued.”  When using social media as a research tool during the application or hiring process, you have to be very careful about violating an individual’s civil rights or any existing labor or discrimination.  For example, certain aspects/attributes of your potential new hire can’t affect your hiring decision.  These include:

  • Race
  • Religion
  • Nationality
  • Age
  • Sexual orientation
  • Marital Status
  • Pregnancy status
  • Disability

Additionally, employers must be actively aware of the “off-duty” laws of each individual state they operate in.  Over half of the fifty states have laws on the books that bar employers (or even potential employers) from acting against employees based on what they do while on their own time.

So how do you even use social media outlets to screen your new hires without walking into a legal mind field?  Tread carefully.

Entrepreneur recommends that companies interested in using social media to screen applicants approach the process as a part of thorough background check rather than an attempt to dig for dirt.  The magazine also recommends that:

Hiring managers should insulate themselves from the social searches

Eric Myers, author of The Employer Handbook Blog, says that having someone other than the person ultimately responsible for the job offer doing the actual digging allows companies to put a layer of protection between them and a discrimination lawsuit.  This subordinate would be able to give a general recommendation (yay or nay) without disclosing any particulars.

Hiring managers should disclose that social sites will be searched

Your potential new hires must understand that their social presence is an important part of the “total package” they’re offering your company.  By disclosing that you will be performing a social search, you give them the option of rescinding their application or cleaning up their social profile.  Also, in addition to this disclosure, get their permission in writing before you initiate any background search.

Hiring managers should consult a lawyer before your background check

Laws which apply to the use of social media sites during the hiring and firing processes are rapidly evolving as the outdated legal system catches up with the way we all live and work in the modern world.  Having professional legal counsel review your practices and policies before you make any inquiries is a good way to cover yourself and ensure that you’re in the clear during the applicant sorting process.

Also, as FastCompany notes, it’s important that you keep detailed and accurate records of just what information was collected during any social media search (and how that information was collected).  For example, you cannot impersonate a friend or bypass an individual’s security settings (such as requiring them to submit login info) during the screening process.  Everything you use must be publically accessible and explicitly covered under your company’s background check guidelines.

And accountability is an issue for your company as well.  You simply cannot allow your hiring managers unfettered access to social media.  You must understand just what procedures they’re using during the process and cannot simply assume that social media sites aren’t playing a part in the final decision or that your managers are using them responsibly.

Potential Employees Aren’t Employees Yet

It’s important to note that even if your company has a policy concerning social media websites on the books, potential employees aren’t covered by that policy.  Job applicants aren’t bound by the same policies as individuals already under your banner so you cannot rely on the wording of those policies to protect you from lawsuits.  It’s essential that you not only recognize the difference, but also understand the legal ramifications of social media use during the hiring process.

It seems like a lot of tiptoeing for little result but successful screening of employees can help limit your exposure to liability suits in the future, reduce the cost of employee turnover, and increase your effectiveness and efficiency by ensuring you snatch the right employees the first time.  Just remember, if there’s any doubt in your mind about the legality of what you’re about to do, consult a legal professional before you do it.

About the author

Matt Faustman

Matt Faustman

Matt is the co-founder and CEO at UpCounsel. Matt believes in the power of online platforms to change antiquated ways of life and founded UpCounsel to make legal services efficiently accessible. He is responsible for our overall vision and growth of the UpCounsel platform. Before founding UpCounsel, Matt practiced as a startup and business attorney.

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