By Kate Bally, Co-head Editor, Practical Law Labor & Employment
A promising application for a job opening at your company comes in the door. What is one of the first steps in evaluating the candidate? For many employers, it is exploring the candidate's social media presence, for example, by reading about them on Facebook. Although it is common practice, it is not without legal risks. A savvy in-house attorney can flag problems associated with using social media in hiring and protect the company from unnecessary legal exposure. The following are the top ten issues related to using social media in hiring that in-house counsel should consider:
1. Mitigate the risk of discrimination claims.
Employers can often bolster their defenses to hiring discrimination complaints by claiming that individuals involved in hiring decisions were not aware of the candidate's protected class status. Many protected characteristics, such as race, disability, age and religion, are not apparent from resumes or job applications, but may be part of a candidate's social media identity. Employers that learn about protected characteristics through social media forfeit ignorance of protected characteristics as a defense. Although case law on the topic is minimal, some courts have recognized that information revealed through online candidate screening might suggest a genuine issue of material fact with respect to discrimination claims. For example, in Gaskell v. Univ. of Kentucky, the court denied a defense motion for summary judgment when a top candidate was passed over allegedly on the basis of information about his religious beliefs discovered through online investigation (2010 WL 4867630 (E.D. Ky. Nov. 23, 2010)). State law may create additional areas of concern by recognizing greater categories of protected classes. For example, state law may prohibit discrimination on the basis of sexual orientation, familial status or lawful off-duty conduct. Examples of lawful off-duty conduct that may be protected under state law include tobacco use, alcohol consumption, firearm possession and engagement in political activity. For more information on protected classes recognized by state law, see Anti-discrimination Laws: State Q&A Tool.
2. Familiarize yourself with background check law.
The Fair Credit Reporting Act (FCRA) is the primary federal law governing employment background checks. Although an employer's evaluation of social media sites by its own employees is not likely to be covered by the FCRA, employers can be implicated by their use of third party background check providers. As with traditional background and credit checks, employers can outsource social media searches to specialist companies. One advantage of outsourcing is that the third party may redact protected class information, providing the benefit of social media content without the added legal risk. However, as consumer reporting agencies, third party background check companies are bound by FCRA and employers using them have related obligations to notify prospective employees about the potential background check and obtain written consent. For more information on the FCRA, see Practice Note, Background Checks and References: The Fair Credit Reporting Act and the Use of Third-party Providers. In addition, state law may impose greater or different requirements. For example, state law may compel stricter background check requirements for people working with vulnerable populations (like children or the elderly) or those in safety-sensitive positions. For information on state law governing background checks, see Background Check Laws: State Q&A Tool.
3. Respect privacy protections.
Using social media in the hiring process implicates a number of privacy law concerns. These concerns are primarily associated with unauthorized access, hacking or deceptive practices to gain access to protected content. First, the Stored Communications Act (SCA), which prohibits intentional access of electronic communications services without authorization, applies equally in the social media context (see, for example, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002) and Pietrylo v. Hillstone Rest. Group, Civ. Case No. 06-5754, 2009 WL 3128420 (D.N.J. Sept. 25, 2009)). For more information on the SCA, see Practice Note, Electronic Workplace Monitoring and Surveillance: Stored Communications Act. Second, employers using social media without authorization may subject themselves to invasion of privacy claims. These claims hinge on an individual's reasonable expectation of privacy. Again, case law is sparse, but employers could expose themselves to invasion of privacy claims by going around authorized channels and breaking into protected social media sites to investigate a candidate for employment.
4. Do not ask potential employees to provide social media sign-in information.
A similar problem employers may face relates to state prohibitions against requiring job applicants to supply employers with access to their social media accounts. Several states have passed laws on employer access to current and prospective employees' social media accounts. Although varied, these laws generally prohibit employers from asking employees and prospective employees to provide their usernames and passwords to personal social media accounts. States that have enacted such laws include Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, Washington and Wisconsin. Other states are considering similar measures. For more detail on state law requirements, see Practice Note, Employer Access to Social Media Accounts State Laws: Overview.
5. Respect the terms of third party social media websites.
Individual social media sites may set specific permissible terms of use. These vary widely but generally touch on topics including privacy and authorized access. Terms can often be found by clicking through a link on the bottom of a social media website's home page. See, for example, Facebook's Terms and Policies.
6. Maintain a healthy skepticism.
Social media sites are often rife with exaggeration or error, and employers should maintain a healthy scepticism about the accuracy of online content. Employers that rely too heavily on social media claims may miss out on good candidates who have unfortunate doppelgangers or hard to remove false information about them online. Best practice is to come to a more thoughtful conclusion informed by numerous sources.
7. Do not rule out those who have no social media presence.
Even passing over a candidate because they do not have a social media presence suggests potential discrimination red flags on the basis of age. According to an April 3, 2014 study by the Pew Research Center, although older Americans are more actively engaged with social media than ever before, they still engage with social media far less frequently than their younger counterparts. Among Americans ages 65 or older who are online, 46% use social media (like Facebook), whereas the national average for American adults is 73%. Employers declining to hire candidates on the basis of their non-participation in social media may inadvertently screen out older applicants.
8. Recruit broadly.
Using social media as a recruiting tool to attract candidates may also create legal risks. Employers that post job openings on social media that cater specifically to particular groups or statistically do not include particular groups may suggest recruitment efforts that are unlawfully biased.
9. Inquire about and act in compliance with agreements with prior employers.
Employers should ask candidates to reveal any contractual obligations relating to their current or former employment, especially non-compete or non-solicitation contracts. This request is particularly important when recruiting a candidate for social media connections or content. The new employer's use of those social media connections to solicit clients or recruit employees may be unauthorized under a prior agreement. Those accounts or contacts made through social media may be regarded as the former employer's property (see, for example, Christou v. Beatport, LLC, 849 F. Supp. 2d 1055 (D. Colo. Mar. 14, 2012) and PhoneDog v. Kravitz, No. C 11-03474, 2011 WL 5415612 (N.D. Cal. Nov. 8, 2011)). Employees that run afoul of these obligations may face injunctions or lawsuits, including for breaches of contract. Additional claims could include tortious interference of contract if the new employer knew about the employee's agreements and encouraged the breach. For information, see Practice Note, Preparing for Non-compete Litigation: Common Causes of Action.
10. Stay up to date on National Labor Relations Board developments.
The National Labor Relations Board (NLRB) has been actively scrutinizing social media policies. The NLRB's focus is on scrutinizing how these policies might, or employers might enforce these policies to, discourage current employees from using social media to engage in concerted activity, such as discussing unions, their wages or other employment terms and conditions. However, there is an untested argument that employers cannot search social media to screen out applicants who have union sympathies or tend to use social media for concerted activity (see Toering Electr. Co., 351 N.L.R.B. 225 (2007)). Regardless of whether the NLRB reaches these issues in future decisions, consistent, non-discriminatory handling of social media activity is good practice to avoid running afoul of the National Labor Relations Act. For the most up-to-date information on NLRB developments on the topic of social media, see Employees' Use of Social Media and the NLRA Toolkit.
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