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Are Potential Employers Getting Too Much Personal Information from Social Media Sites?

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Q: How are employers using social media in the hiring process?
A:
 Social media provides a free, easy-to-use hiring tool that gives employers access to information that might otherwise be unknown.  Hiring managers learn about applicants’ extra-curricular activities, what they think of their current employers, political views and more.  With millions of active users on Facebook, LinkedIn and Twitter, an employer is likely to find potential job candidates on one or more of these social networking sites. 

Q: How many companies use social media as a hiring tool?
A:
 In April 2012, CareerBuilder sponsored a Harris Interactive survey of more than 2,000 hiring managers and human resource professionals and found that 37 percent of them screened job seekers using social networking sites. This was down from 45 percent of employers using social sites to screen applicants in a 2009 study. Information that may have impacted these recruiters’ hiring decisions included good or poor communication skills, provocative and inappropriate photos or comments, confirmed or false qualifications, photos of alcohol or drug abuse, and the level of creativity or professionalism displayed. In fact, 34 percent of the surveyed employers found information that caused them not to hire a candidate. On the other hand, 29 percent said they discovered information that encouraged them to hire an applicant, up from 18 percent in 2009. 

Q: What content from social media sites can employers NOT consider when making a hiring decision?
A:
 Using social networking sites to screen applicants may unintentionally expose hiring managers to protected class factors and other personal information. Federal and state laws dictate that an applicant’s age, race, color, national origin, religion, gender, disability and veteran status cannot be considered when a company is screening job applicants. The ted Genetic Information Nondiscrimination Act (GINA) protects a candidate’s genetics and family medical history as well.

Additionally, the National Labor Relations Act (NLRA) prohibits both unionized and non-union employers from conducting surveillance of protected concerted activities and making hiring decisions based on whether an applicant is union-leaning. In fact, the acting general counsel of the National Labor Relations Board (NLRB) issued a May 30, 3012 memorandum exploring what the NLRB views as overly broad employer social media policies that violate the NLRA.

Q:   What are some “best practices” for hiring managers who are using social media sites to screen applicants?
A:  Hiring managers should avoid asking for or requiring applicants to provide their social network site passwords. Aside from claims of privacy invasion, such a practice might open the employer to claims under multiple federal statutes including unauthorized access to stored electronic postings in violation of the federal Stored Communications Act. Consistency is the key for hiring managers who use social media sites to screen job applicants. Employers become vulnerable if they are selective in picking which applicants to screen online, or if they evaluate differently the information found on certain applicants. When employers are exposed to an applicant’s protected or personal information, they must show that it did not influence their decision. To avoid costly refusal-to-hire claims, an employer that screens through social networking sites should have a non-decision maker undertake such background checks. While reviewing the content, only job-related criteria should be considered. Documentation is critical. Hiring managers should maintain records of the social networking tools used, their findings and explanations of why an applicant was or was not considered or chosen for a particular job.

10/17/12

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by John W. McKenzie, Esq., a shareholder with the Akron labor and employment law firm Kastner Westman & Wilkins, LLC, which represents management exclusively.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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