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In today’s digital age, employers have a world of information at their fingertips through which they can learn about current and prospective employees. A quick online search can yield information far beyond what an individual includes in his or her resume or employment application. Out of a desire to make sure a candidate is qualified and will otherwise be a “good fit” for an organization, companies may be tempted to search for information concerning job applicants through social media sites such as Facebook or LinkedIn.
Yet this could result in unintended liability if not properly used.
Recently, a federal district court in California was faced with the issue of whether LinkedIn’s Reference Search product, which allows companies to search for people who have previously worked with a particular individual, violated the federal Fair Credit Reporting Act. Ultimately, LinkedIn prevailed by demonstrating that since the information it supplies about an individual is input by that individual, the Reference Search tool cannot violate the FCRA.
Despite this victory for LinkedIn, employers should exercise caution before using LinkedIn, Facebook or any other form of social media to learn information about current or prospective employees. Before a company begins accessing the social media profiles of prospective employees, the company should question why it is doing so. What information does the company hope to gain that is not available through the candidate’s resume or employment application? Is that information directly related to the hiring process? If not, the company may be infusing unnecessary risk into the hiring process by checking up on prospective employees through social media.
As a general rule, employers are free to assess publicly available information about potential candidates, which includes information that is made publicly available through an individual’s social media profile(s). That being said, where businesses use any form of social media to gather intel concerning prospective employees, they run the risk of being accused of unlawful discrimination if they learn information upon which they are prohibited from basing the hiring decision.
For example, if a prospective employer were to look up my LinkedIn profile, he or she would be able to learn about my professional experience, but they would also be able to see my photograph and would therefore learn my gender, race, and approximate age — information which may not be immediately apparent from the resume that I submitted. Since LinkedIn allows users to post information about their interests and languages spoken, a LinkedIn user’s profile could also contain information about their country of origin, interest groups with which they are associated, and so on.
Thus, if a company accesses a candidate’s LinkedIn profile and thereafter does not hire that candidate, the rejected job seeker could assume that the company based its decision on a protected classification (such as race, sex, age, sexual orientation, or union activity) and thereafter file a claim of discrimination. While the rejected candidate bears the burden of proving that discrimination occurred, and while there are certainly defenses that companies can raise when accused of discrimination, the point is, a company which takes it upon itself to access the social media profiles of a prospective employee may face additional hurdles in litigation than if it relied on the applicant’s resume alone.
If, notwithstanding the risks, a company elects to use social media to research prospective candidates, it should carefully plan out its social media strategy to try to minimize risk. Among other things, businesses should consider the following.
• Choose your social media carefully. More often than not, LinkedIn users tend to tailor their profiles to include only information that is helpful to advancing their career in their chosen profession. In contrast, Facebook users and those who maintain personal blogs often include significant personal information on those sites, such as information about their family status, sexual orientation, and other information that companies generally should not consider in the hiring process. If a company is determined to use some form of social media to evaluate candidates, LinkedIn may be a less risky alternative to viewing a candidate’s public Facebook profile or personal blog. Among other reasons, if a company is later accused of discrimination because it accessed a candidate’s public LinkedIn profile during the hiring process, the company could argue that the fact that it researched the candidate through LinkedIn rather than other social media sites is indicative of an intent to obtain and consider only job-related information.
• Develop a social media policy. If a company elects to use LinkedIn or other social media to assess potential candidates for employment, it should develop a policy outlining which information can and cannot be considered within the LinkedIn user’s profile. The company may even want to implement a double blind system, where one person retrieves the candidate’s LinkedIn profile and then redacts all personal, non-job related information before disclosing the contents of the profile to the individual responsible for making the hiring decision.
• Do not request log-in credentials. If businesses elect to use social media, they should stick to only information that is publicly available. Under almost no circumstances should a company require candidates or employees to disclose the user names, password or other log-in credentials associated with their personal social media accounts.
Shannon S. Pierce is an attorney with Fennemore Craig in Reno. Ms. Pierce has been representing management in the field of employment law and commercial litigation for more than a decade. She can be reached at spierce@fclaw.com.
