By: Vincent Valente
These days, social media is used in the recruiting process more than ever.[1] Nearly 92 percent of companies, including Fortune 500 companies, use social media sites in their recruiting.[2] These sites include Twitter, LinkedIn, and Facebook, and have been the sources of rejection for potential candidates.[3] For employers, the rewards of using these sites outweigh the potential risk of a lawsuit.
Social media sites are a great way to review applicants; however, they may generate unwanted litigation for an employer. When a company reviews an applicant’s social media page the courts will assume you are aware of that person’s protected characteristics.[4] Characteristics include, gender, race, religion, age, sexual orientation or disability, and thus, it becomes imperative that employers take extra precaution to stay within the bounds of a legal interview.[5] However, employers will face scenarios where the applicant’s profile also suggests he or she may not be appropriate for the position.[6]
Employers can and should take steps to help protect themselves from the potential liability of using social media sites in recruiting. Employers should conduct the same searches at the same time in the process for every applicant (e.g., after the employer has interviewed with the applicants) and employers should also print anything or save screen anything that may cause them to question the candidate’s professionalism, judgment, or candor.[7] Employers can also choose to refresh and train their employees who are doing the hiring on antidiscrimination laws.[8] Although these steps are not absolute, they may help prove that you were not relying on protected characteristics which may be seen through an applicant’s social profile.[9]
However, for an employer that uses a third-party investigator there is an additional requirement to remain within the bounds of the law. Employers that use third-party investigators and recruiters must comply with the Fair Credit Reporting Act (“FCRA”).[10] FCRA requires the applicants consent to perform a back ground check.[11] However, currently, there is no requirement to obtain the applicants consent to review their social networking site.[12] Therefore, an employer could be liable for relying on information obtained by the third-party investigator which was acquired from the social media site.[13]
Despite the potential liability of using social network sites in recruiting, many employers do it because of the benefits it offers. Social profiles give recruiters insight to a candidates professional and cultural fit.[14] Social recruiting also generates a strong return of investment in “both dollars and candidate quality.”[15] Not only will employers get the best-quality candidates from their company’s and employees’ networks, but it is also more efficient.[16] In addition, these sites may provide information that can be used to make legitimate and nondiscriminatory decisions.[17] So it seems, for employers, that the benefits outweigh the risks.
Social media law is constantly evolving but researching the right way may help your company avoid legal ramifications. Employers should proceed with caution because of the lack of clear case law and regulation in the area.[18] So if you’re part of the 92 percent of employers who are looking at candidate’s profile,[19] research smart.
[1] 2013 Social Recruiting Survey Results, Jobvite.com (2013), http://web.jobvite.com/rs/jobvite/images/Jobvite_2013_SocialRecruitingSurveyResults.pdf.
[2] 92% of Companies Use Social Media For Recruitment, Mediabistro.com ( Oct. 16, 2013, 9:00 AM), http://www.mediabistro.com/alltwitter/social-media-recruiting_b50575.
[3] Id.
[4] Melanie Berkowitz, Recruiting and Hiring Advice, Monster.com, http://hiring.monster.com/hr/hr-best-practices/recruiting-hiring-advice/acquiring-job-candidates/social-media-recruiting-guidelines.aspx.
[5] Id.
[6] Id.
[7] Id.
[8] Howard Schragin, Social Networking Sites as a Hiring Tool: Why you should proceed with caution, 16 No. 2 N.Y. Emp. L. Letter 3 (2009).
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] 2013 Social Recruiting Survey Result, supra note 1.
[15] Id.
[16] Id.
[17] Schragin, supra note 8.
[18] Howard, supra note 8.
[19] 2013 Social Recruiting Survey Result, supra note 1.
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