Using Social Media in Hiring: How to Avoid Risks of Discrimination

Once upon a time, employees gathered around the water cooler — or, more recently, the coffee pot — to swap opinions and gossip about the coworkers not fortunate enough to be present. Much of the information swapping was harmless, but even when the conversation took a sexual or discriminatory turn, most of it was forgotten by the time participants returned to their desks.

In the age of social media, however, nothing is forgotten. Nothing is private. What happens online stays online, even, in many cases, when you think it’s gone.

The Equal Employment Opportunity Commission (EEOC) has turned its attention to social media recently, starting with a public meeting last spring that featured testimony focusing on social media’s impact on issues like equal employment, recruiting and hiring, workplace harassment, and more. The entire transcript is available at the EEOC website.

So far, the EEOC has not issued formal guidance to companies on how to minimize exposure to discrimination claims from the use of social media, it has recommended that employers distance themselves from social media posts by never requesting social media passwords and using a third party to conduct social media background checks. The Society for Human Resource Management (SHRM) built upon these recommendations to develop “7 Ways to Maximize Benefit and Minimize Risk.”

  1. Never ask for passwords. Some states already have made the practice illegal. In all 50 states, asking for an applicant’s password creates a risk of violating the federal Stored Communication Act. Confine your use of content to that which is public.
  2. Have HR do the checking. An HR professional is more likely to know what information is legal to consider. Line managers may not be so discerning.
  3. Check social media later in the process. Wait until after the job interview to look at the applicant’s profile. By then, you likely will be aware if the jobseeker belongs to any protected groups.
  4. Be consistent. Don’t confine your social media inquiry to a single candidate.
  5. Document every step. If you use social media as the basis for a hiring decision, print out the content and record your reasons for the decision.
  6. Consider the source. Use the candidate’s own posts, not what others say. If second-hand content seems worrisome, ask the candidate to respond.
  7. Be aware that other laws may apply. If, for example, you use a third party for social media screening, the Fair Credit Reporting Act may come into play. State laws vary, so check with your attorney in case of questions.

As the law catches up with social media use, we can expect more specific guidelines for what employers can and cannot do. But existing law provides a useful basis for your methods. The media is new, but the legal issues are not.

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