Social media can be a useful tool in the hiring process. The Society for Human Resource Management (“SHRM”) surveyed its members in 2008, 2011 and 2013 on the use of social media for employee recruitment and selection. In 2013, seventy-seven percent of respondent companies used social networking sites. That figure was up from fifty-six percent in 2011 and thirty-four percent in 2008. A 2017 CareerBuilder survey found that seventy percent of employers now use social media to screen potential hires. While the law on social media use in the hiring process is developing, employers should keep an eye out for anti-discrimination laws, the Fair Credit Reporting Act, and password protection laws.
Viewing a prospective employee's social media in the hiring process can reveal information about protected class status that can later become the basis for a discrimination claim. From a candidate’s picture, an employer may learn his or her race, approximate age, and more. People also commonly post personal information such as medical or family problems. Moreover, using targeted advertising to post a job on social media may overly narrow recruiting efforts to a certain age group, gender, or race. Ideally, social media should be part of a larger recruitment plan that includes traditional recruiting avenues.
As with traditional background and credit checks, employers using social media background checks can choose to outsource searches to third-party providers. Before providing the results of the search, the background checkers redact information regarding a prospective employee's protected class status. This may help insulate an employer from liability.
Critically, employers must be aware that social media background check companies are considered consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”). As such, employers must comply with the requirements of the FCRA. Under the FCRA, employers that procure a background check report for employment purposes must give applicants “clear and conspicuous” written notice and obtain the applicant’s written consent before requesting such a report. The FCRA sets forth additional requirements regarding the proper format and content of the notice document, as well as the employer’s reporting obligations in the event the employer takes action based upon the report. Employers must be mindful of these potential pitfalls.
States, including Louisiana, have enacted laws addressing employer access to current and prospective employees' social media accounts. Under Louisiana’s Personal Online Account Privacy Protection Act, employers are prohibited from: (1) requesting or requiring employees or applicants to disclose usernames, passwords, or other authentication information that allows access to their personal online accounts; or (2) discharging, disciplining, failing to hire, or otherwise penalizing or threatening to penalize employees or applicants for failure to disclose such information.
There are exceptions. Nothing in the law precludes employers from requesting that employees: (1) disclose log-in credentials for any employer-provided system or equipment; or (2) divulge content in any accounts or services provided by the employer or by virtue of the employee’s employment relationship with the employer. The law does not prohibit employers from conducting an investigation into misappropriation of proprietary information, violations of the law, or workplace policies where the investigation arises from the receipt of specific information about activity on the employee’s personal account. Louisiana’s law states that employers are not prohibited from viewing, accessing, or utilizing information about employees or applicants that is already publicly available. However, employers should be careful not to run afoul of EEO laws.
Social media is at our fingertips. In terms of the hiring process, it can provide a view into a candidate’s qualifications and serve as an effective means to broadcast open positions. Still, employers should be cognizant about how and to what extent they rely upon information gathered through social media. Once an employer learns of an otherwise protected characteristic, the waters can become muddy if he or she must prove the characteristic did not inform hiring decisions.