Social Media Recruiting Exposes Employers to Liability Risks

Recruiters and Employers Increasingly Look for Job Candidates by Social Media

Recruiting experts have noticed significant growth in the use of social media as a recruiting tool. The vast majority of employers and search firms admit to their use of social media in the recruiting process. They further expect its growth to continue. Check out the social media recruiting stats here and how not all social media prove equally valuable as a recruiting tool here.

Social Media Profiles Provide Too Much Information

LinkedIn or other profiles likely include information disclosing any one or more of a candidate’s age, disability, ethnicity, gender, national origin, or religion. In addition, the Genetic Non-Discrimination Act, forbids employers from either gathering genetic information or medical history information from job applicants and employees. The Equal Employment Opportunity Commission (EEOC) has warned employers that this law prohibits them from obtaining such information from social media.   See the EEOC’s guidance here. 

Federal and state employment discrimination laws prohibit employers from screening job candidates on the basis of membership in any one or more of these statutorily protected classes. These laws not only forbid intentional bias, but also results that reflect unconscious discriminatory effects that disproportionately eliminate persons in protected classes.

Filter Problematic Social Media Information from Screening Decision-Makers

Most employers separate recruiting from hiring.  They have one person or group of persons who screen applications to eliminate candidates who lack the necessary qualifications and other job requirements. After the screener or screeners winnow the job applicants to a more manageable number, the person or persons with decision-making authority to hire reviews or review the screened applications. This decision-maker or decision-makers reduce the larger minimally qualified pool to those to a smaller group of candidates who have interviews. From the interviewed candidates, the decision-maker or decision-makers choose the person that the employer hires. Such a process must avoid using information from social media that identifies a candidate as a protected class member from the screening process.

To do so, employers should add a step to the beginning of the screening process. The additional first step would gather the profile information of social media candidates and remove any information identifying any specific candidate as a protected class member. At this stage, the persons removing such information lack any authority to eliminate any candidate from the social media candidate pool for any reason. At the next phase, the person or person with decision-making authority would make their screening decisions without any exposure to the information identifying any particular candidate as a protected class member.

Alternatively, employers could hire a contractor to do social media candidate screens. The mere use of a third party to do the screen, however, offers no guarantee that the contractor conducted its screening without exposure to the protected class information inevitably present in social media profiles. In addition, the Federal Trade Commission (FTC) regulates an employer’s use of information about job candidates gathered by third parties from Internet sources. It considers the information reported to be a consumer report. To use the information, employers must satisfy the requirements of the Fair Credit Reporting Act (FCRA) for using consumer reports.They include giving candidates written notice of the possibility that the employer may use consumer report information and getting their written consent for it to do so. If an employer eliminates a candidate on the basis of a consumer report, then the FCRA requires it to notify her or him of its reliance on information in the consumer report to take the adverse action against her or him. The employer must also give the candidate notice of her or his right to examine the information in the consumer report and to dispute its accuracy.

Violations of the FCRA can produce large fines for violators. In a recent case, the FTC assessed a fine of $800,000.00 against Spokeo, Inc. Its business involves the compiling of Internet information that it sells to others, such as businesses. The FTC fined Spokeo because of its failure to satisfy the FCRA’s requirements for consumer reports used for purposes of employment-related decisions. Before the FTC took this action, Spokeo had gathered information from Internet sources about persons and sold the results to employers and recruiters to use in the hiring process and for background checks.

Manage the Risks of Social Media Recruiting Wisely

Employers can avoid the risk of FTC fines for violations of the FCRA by doing any gathering of information from Internet sources about job applicants or employees inhouse, rather than through a third party. Employers should also avoid the use of social media profiles at the screening stage of the hiring process. They realistically, however, need to know the information contained in the social media postings of job applicants before hiring them. They can manage their risks by limiting their gathering of that information until after they either reach a very small group of finalists or after they make a conditional offer of employment. In either case, the employer should tell the affected applicants of its intention to do an Internet search as part of its background checking. It should further require them to provide written permission for the employer’s background check, including Internet searches and examinations of the applicant’s social media profiles. Employers, except for those in either Illinois or Maryland, can assure their access to such applicants’ social media profiles by obliging them to open their social media profiles in the presence of the employer’s representative.