Social Media and Recruiting: Understanding Recent Legislation

Social media is changing the way businesses screen new hires. More and more employers are turning to social media websites such as Facebook, LinkedIn, Twitter, and even Instagram during the recruiting process.

Because the use of social recruiting is on the rise, all kinds of questions are springing up—from employees, employers and lawmakers:

"Is it legal to peruse an applicant’s Facebook page for their posts and pictures? Can I ask them for their password?"

"Is one drunken party picture grounds for dismissing an applicant?"

Lawmakers Are Stepping In

Several state legislators have taken notice of the use of social media in the workplace. Since 2012, 12 states have passed laws restricting private employers from requesting and/or requiring employees and applicants to provide their personal passwords to social networking websites. This includes Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington. Several other states have legislation pending in committee or between the chambers.

Employers and the Use of Social Media

Here are some questions you as an employer should keep in mind before considering searching for an applicant through social media:

1. Is it illegal to search an applicant on the internet?

Before considering whether or not to do an internet search on an applicant, keep in mind that there is no employment law that makes it illegal to search for an applicant on social networking sites. People who post publically should have no expectation of privacy. However, accessing a site that is password protected without the applicant’s permission could form the basis of legal claims.

2. Should I risk a potential discrimination claim?

What an applicant posts on social media may not be job-related and have no bearing on whether they are a qualified candidate for the job. Employers may risk potential discrimination claims when looking at a candidate’s social media profile when they are a member of a protected class. For example:

-An applicant announces on her Twitter account that she is pregnant.

-An applicant’s recent status discusses her church and religous activities

These applicants may not have been suited for the job based on their past experience/qualifications as it relates to the position. However, if it is found that the dismissed applicant was searched on the internet and also a member of a protected class, there is the risk of a discrimination claim.

3. Does the applicant’s account appear verified?

That must be their profile, right? It has their name on it. Not necessarily. Anyone can register a profile on a social networking website and can potentially register one for someone other than themselves. It could also be someone else with that same name.

4. Is my applicant screening solely job-related?

A job applicant should be considered based on their skill set as it relates to the job they are applying for. Considering an applicant’s resume, employment application, education, and background skill set will provide employers with job-related criteria about the candidate. For better or for worse, in an age of digital deception, those background sources may be the most reliable.