Social media provide a wealth of information about job applicants. LinkedIn has 225 million registered users, of whom the fastest growing demographic is students and recent grads, by LinkedIn's count. This bounty of background information now at the fingertips of recruiters, human resources departments, hiring managers and executives abounds with pitfalls and traps. In December 2012, the Equal Employment Opportunity Commission announced as a national priority eliminating barriers in recruiting and hiring. This priority, coupled with the EEOC and employee groups using fictitious applicants to reveal discriminatory hiring practices, underscores how it has become increasingly important for employers to discuss how to handle social-media checks during employment decisions.
As a threshold matter, there are no known appellate legal precedents addressing discrimination claims solely predicated on hiring decisions influenced by information obtained from social media. Recently, there have been trial-level cases in which social-media recruiting tools and/or website recruiting efforts were pointed to as evidence of discrimination. There is a substantial amount of litigation over whether subjective hiring practices are discriminatory under disparate-impact or disparate-treatment theories.
In reviewing social media, hiring managers will exclude or include candidates based on their own personal review of the background information. This subjective review of social-media content is particularly vulnerable to discrimination claims, as plaintiffs in disparate-treatment cases can challenge "subjective evaluations which could easily manifest covert or unconscious discrimination on the part of predominantly white managers." Robinson v. Polaroid, 732 F.2d 1010, 1015 (1st Cir. 1984).
Given this, an employer should be cautious about the social-media content used to make subjective decisions in hiring. Postings and pictures may alert a potential employer to information protected by federal, state or local anti-discrimination laws. The posting might show a candidate at a rally for LGBT rights or reveal an affiliation with a disabled veterans group. Fictitious applicants might intentionally advertise the inclusion in protected groups to flush out discriminatory hiring practices.
Beyond protected class status, so-called lifestyle statutes restrict an employer's ability to make employment decisions based on an employee's lawful off-duty conduct. When a social-media search reveals postings about protected class membership or lifestyles, it can be a challenge for an employer to establish that the protected class information was not a factor in the hiring decision. Computer forensic evidence documenting that an interviewer visited social-media sites and did not hire an otherwise qualified applicant may enable a plaintiff to defeat summary judgment and bring a case to trial.
Another cause of concern is the Genetic Information Nondiscrimination Act, which generally prohibits an employer from obtaining genetic information. There is an exception to the ban if such information is acquired from publicly available sites. 42 U.S.C. 2000ff-1(b). Thus, genetic information learned from social-media sites where the privacy policies do not lock out the general public or do not require permission from the applicant to access would likely fit within this exception. An employer who learns from a publicly available Facebook page that an applicant has a history of heart disease may not be liable solely for acquiring this information. However, even lawfully obtained genetic information may not be used in any manner as the basis for a hiring decision.
Recent EEOC guidance asserts that the use of an individual's criminal history may violate Title VII of the Civil Rights Act of 1964. As recently as June 11, the EEOC filed lawsuits against two companies claiming that their use of criminal background checks had disproportionately screened out black job applicants. Moreover, certain states restrict using arrests that do not lead to a conviction as the basis of any employment decisions. Facebook updates can contain references to an applicant's criminal history. Employers should not use the unverified information obtained from social media as the basis for any employment decision.
Given these various risks, as employers weave social-media screening into their hiring processes, they should consider the following broad guidelines when developing social-media policies:
• First, an employer should determine when in the hiring process to review social media. A large number of applicants subjected to social-media searches could create statistical data supporting a disparate-impact case. It is advisable to limit social-media review to applicants who pass at least an initial level of screening. Overall, an employer should review all applicants at the same stage in the hiring process.
• Next, to prevent privacy-violation claims, an applicant should be given a written notice that the employer uses social media to screen applicants and the timing of that search.
• The employer should also determine who will conduct the searches. If possible, employers should separate screeners from decision-makers. Screeners should redact any data that would show membership in a protected class or participation in a protected activity from screening reports. In addition, decision-makers and interviewers should be instructed not to conduct their own social-media searches. However benign the searches may be, forensic computer analysis revealing a social-media search could become the basis of a discrimination claim. Interviewers should be instructed to direct any open questions to human resources so that all searches are performed by trained personnel and administered in a manner consistent across all applicants.
• If a consumer reporting agency is used to gather social-media content about an applicant, the employer should comply with the Fair Credit Reporting Act and any applicable state equivalents. The employer should provide applicants with a preadverse action and final adverse-action notice if such action is taken on the basis of those reports.
• After appropriate personnel are selected to perform social-media searches, an employer should create clear guidelines for the scope of social-media searches. Social-media searches should be limited to publicly available content that does not require a password or "friend" status for access. It is generally not advisable, and may be illegal, to ask applicants for employment for password information to their social-media accounts. While there are exceptions, 11 states have enacted legislation and more than 21 other states are considering legislation that restricts an employer's ability to request password information or to compel an employee or applicant to log on to a social-media site. However, regardless of the state's law, under many circumstances a jury might not take kindly to an employer forcing an applicant to reveal password-protected information that eventually became the basis to reject an applicant. The employer should develop a template to document the objective information that will be collected from a LinkedIn or Facebook profile.
• After social-media content has been gathered, it is important to verify the content's reliability. A LinkedIn or Facebook profile with background information that matches a prospect's application is more reliable than a group photo with names tagged in no particular order. Common names will generate multiple hits. As a joke, an applicant's friend might have gained access to an applicant's Facebook page and posted a false update. Given the unreliability of social media, having clear, consistent guidelines regarding how to verify all applicants' data is the best practice.
• As the social-media search, redaction by screeners and analysis are conducted, an employer should maintain clear documentation of why the applicant was or was not hired; save and maintain any unprofessional derogatory posts about protected categories; save and maintain tweets that demonstrate a commitment to the mission of the employer or lack thereof; and save both the profile showing protected categories and the redacted portion given to the interviewer. These records should be retained with applicable legal records-retention requirements and be consistent with the company's corporate records-retention policy.
In the end, social media provide employers with a wealth of information to consider in the hiring process. Improper or haphazard use of social media can create claims of discriminatory conduct and result in having to defend against lawsuits from the EEOC or individuals. To help avoid this fallout, social media should be used in a consistent, well-documented manner that ensures the selection process complies with anti-discrimination laws, informs the applicant of social-media use, documents accurately the social-media content used and the efforts to confirm its accuracy, and who reviewed the social-media content. Armed with this documentation, an employer will be able to take advantage of the limitless potential of social-media recruiting and hiring and defend those efforts if called into question.
Matthew Marca is a shareholder in Littler Mendelson's Washington and San Francisco offices. Philip Gordon is a shareholder in the Denver office.