With a few strokes of the keyboard or taps on the iPad, employers seemingly have a wealth of free and easily accessible information up for grabs to scout for new talent and recruits, and weed out less desirable applicants from the stack of resumes on their desks.
Employers may also seemingly have justification in firing an employee whose social media content impugns the reputation of the business, demeans or threatens staff, or divulges confidential business information. However, what may seem to be an appropriate use of publicly available information is not without legal implications and risks.
Although there are no laws that prohibit the use of social media to screen or recruit applicants, conducting pre-hire social medial background checks may expose employers to potential “failure to hire” discrimination claims.
While the employer may be innocently looking at social media content to ascertain the candidate’s prior work experience, education and skills, the employer may also obtain personal information about the candidate that legally cannot, and should not, be factored into the hiring process. For example, by accessing a job candidate’s LinkedIn profile, an employer may obtain a photo identifying the candidate’s race or ethnicity, and a similar search of the candidate’s Facebook account may identify the candidate’s religion, sexual orientation or perhaps a disability.
Yet, it is unrealistic to entirely ignore the value of social media with regard to recruitment efforts. Just as job seekers use social media to look for positions and market themselves, employers should be able to use social media in a legally responsible manner. However, to harness the value of social media in recruitment efforts, while at the same time minimize the risk of discrimination or privacy claims, employers would be well served by taking the initial steps of: (i) adopting appropriate social media policies with regard to recruitment; (ii) preparing written detailed job descriptions; (iii) designating and training personnel to conduct social media background checks consistent with policy and law; and (iv) uniformly applying the policy.
Review and Expand Social Media Policies to Cover Recruitment Efforts. It has become fairly commonplace for employers to have social media policies governing usage by existing employees. Historically, employers were generally free to implement broad policies restricting employees from using social media sites such as Facebook, MySpace, Twitter and the like to disparage the company, product or services, demean staff, or even disclose what was traditionally considered “confidential” salary information. However, since 2011, the National Labor Relations Act (NLRA), which protects union and non-union employees’ right to engage in “concerted activity” (including the right to discuss the terms and conditions of their employment), has been interpreted to prohibit employers from imposing such broad restrictions on an employee’s usage of social media, which may discourage employees from organizing or negotiating terms of employment. See 29 U.S.C. §157; NLRB and Social Media, National Labor Relations Board Fact Sheet, available at http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media.
While employers can no longer impose sweeping restrictions, narrowly tailored social media policies remain a critical management tool. Among other things, social media policies remain an effective tool to minimize, and defend against, employee privacy and First Amendment claims, when such a policy clearly places employees on notice that their Internet, email and computer usage on company issued equipment may be accessed, read and monitored. Policies that restrict employees from using social media to unlawfully harass, intimidate or threaten staff, vendors and clients also remain critical to protecting the work environment and promoting an employer’s zero-tolerance policy against acts of discrimination and workplace violence.
Employers who use social media to recruit or screen job applicants should make clear that their social media policy covers the pre-employment hiring process, and that it is not limited to setting forth the dos and don’ts of social media usage by existing employees. With regard to provisions of the policy that cover recruitment, ideally employers should consider implementing a process that involves conducting a social media background check after a conditional offer of employment has been extended and consent obtained from the applicant. This is similar to the approach taken by employers who extend a conditional offer of employment, subject to a criminal background check. By first extending the conditional offer, should the employer later uncover information in the criminal or social media background check that appropriately warrants revocation of the offer, it diminishes the applicant’s ability to establish that they were denied employment due to race or other protected characteristics, which would have been known by the employer when he or she initially made the job offer.
Further, just as employees are given an opportunity to refute false information that may come up in a criminal background check or explain why any such record has no bearing on their ability to perform the job, applicants should arguably have a similar opportunity to confront and explain social media content that has been relied upon by the hiring decision-maker, which may be false or otherwise unreliable.
Employers should be wary about implementing policies and procedures demanding applicants to provide them access to “blocked” or password-restricted information. Job seekers are now more cognizant that employers may be trolling the Internet for information that they do not necessarily want a prospective employer to see, and they may limit access to select viewers (e.g., a person with a Facebook account may allow access to those individuals he or she formally accepts or acknowledges as a “friend”) and block information to the general public. Several states, such as Arkansas, California, Colorado, New Jersey, Nevada, New Mexico, Oregon, Utah, Vermont, and Washington, specifically restrict employers from demanding an applicant or employee to provide password or login information to gain access to their social media accounts. See Society for Human Resources Management, Social Media Privacy, November 2013, available at http://www.shrm.org/legalissues/stateandlocalresources/stateandlocalregulations/documents/socialmediaprivacy.pdf. Although New York does not have such a law currently, similar legislation has been previously introduced in the state senate. See S. 1701, 2103 Leg., 236th Sess. (N.Y. 2013) Employers should also refrain from bypassing security settings and surreptitiously gaining access with a fake identity or other end-run means (e.g., an employer asking someone who may have access to the applicant’s non-public social media content to feed them the blocked information). The Federal Stored Communications Act, 18 U.S.C. §2701, makes it an offense to intentionally access stored communications without authorization or in excess of authorization.
Drafting Written Job Descriptions. To supplement policies relating to recruiting and equal employment opportunities, it is important for employers to have detailed and standardized job descriptions, which specify the requirements and essential functions for all job positions. Thus, if a background check of an applicant’s education, credentials, or social media profile reveals that the applicant does not meet the express criteria of the job description, the applicant will be hard-pressed to claim that he or she was not hired because of race, age, disability or other discriminatory reasons.
Designating Appropriate Personnel to Implement Policy. An employer may also be wise to designate a specific person—who is not involved with interviewing or making hiring decisions—to conduct the social media background check and report to the decision maker only information relevant to the position being sought. In other words, have a designated employee scrub from the social media background check any information that may not lawfully be considered by the decision maker, including the applicant’s race, religion, disability, age, etc. Of course, this method assumes an honor system and that such impermissible information will not be leaked to the decision maker. Alternatively, employers may engage a third-party vendor to conduct the social media background search and scrub the information before reporting it to the employer, which is commonly done for purposes of running criminal or credit history background checks on applicants. As criminal and credit history reports conducted by third parties are viewed as consumer reports, a report of an applicant’s social media history prepared by a vendor may be also be deemed a consumer report. And, as a consumer report, an employer would need to first obtain an applicant’s consent to have the vendor conduct the social media background check to avoid running afoul of the Federal Fair Credit Reporting Act.
Uniform Application of the Social Media Policy. If an employer chooses to screen applicants using social media, it should not do so selectively with some applicants and not others. It would be prudent for an employer to apply the same general protocols when checking social media for all applicants. Such consistency in application will help avoid discrimination claims based on applicants claiming that they were subject to more stringent requirements/checks than applicants of a different race or protected category.
On a related note, an employer should document its efforts to search an applicant’s social media and retain copies of all documentation reviewed and considered in connection with the application process. Such documentation will be useful in establishing that the employer applied its policies in a consistent and non-discriminatory manner.
Flip Side: Turning a Blind Eye
Some employers, understandably, may opt to forgo using social media in the hiring process rather than risk a potential claim of discrimination. But this approach is not necessarily without risk. In New York, an employer may be liable to a person injured by an employee who the employer knew, or should have known, had a propensity to engage in the conduct which caused the injury. Bouchard v. New York Archdiocese, 719 F. Supp. 2d 255 (S.D.N.Y. 2010). A cause of action for negligent hiring or retention may be established if the employer had knowledge of facts that would lead a reasonably prudent person to investigate that prospective employee. Richardson v. City of New York, 2006 WL 3771115 (S.D.N.Y. Dec. 21, 2006).
The law does not require an employer to implement any specific background checks, or even require employers to conduct a criminal background check, except for certain positions where the employee deals with the public or vulnerable populations such as teachers and health care professionals. However, adopting the “hear no evil, see no evil” approach will not always serve to protect an employer from a negligent hiring or retention claim. An employer may, without taking any affirmative action or initiative to investigate, be told by a colleague, friend or other staff member about negative information posted on the Internet or social media site about a prospective applicant or existing employee. Take the extreme example: An employer is told that an applicant or employee purportedly posted that he or she was terminated from their prior employment after coming to work with a gun. In such instances, when the information conveyed to the employer is more than just unflattering, but may reveal a propensity on the part of the applicant or employee to cause harm or injury in the workplace, an employer may not be able to turn a blind eye and should consider conducting an appropriate level of investigation based on the reported information and circumstances.
Social media can be a valuable resource and an effective tool to recruit and screen applicants. However, employers should be wary about randomly checking the social media background of job applicants without first implementing policies and procedures to minimize the potential risk of discrimination or privacy claims by applicants who are denied employment.
Marianne Monroy is a partner at Garfunkel Wild and is co-chair of the firm’s employment law practice group.