Job Applicant Screening: Is Social Media Fair Game?

Those who’ve grown up in the age of social media are warned that self-expression can come with a cost if they act carelessly. Photos and videos of youthful indiscretion can reflect badly on personal reputations, and, if seen by the wrong person, can lead to a person not getting a coveted job. However, the question remains as to whether these moments, which people willingly post online for the world to see, should be viewed and considered by those whose job it is to find the best people to work for their companies and organizations.

Jeff Starling , a partner and chair of the Labor & Employment Practice Group at Balch & Bingham, LLP in Birmingham, Ala., recently spoke with Bloomberg BNA on this issue.

1. Why do many employers take the risk of using social media sites to screen job applicants despite the potential legal and public consequences?

In many cases, employers simply are not aware of the legal risks, including the increased risk of discrimination claims and negligent hiring claims. In addition, it appears that for some employers social media provides an easy avenue for checking resumes and finding information that helps distinguish or eliminate candidates.

2. Why do decision makers feel that there is a need to look at a job applicant’s social media page(s) as opposed to the traditional method of contacting listed references or previous employers?

There are a number of reasons why employers feel the need to look at a job applicant’s social media, including basic curiosity. Most believe that they will discover illuminating or discrediting information about an applicant on social media because the applicant is more honest, or at least not as guarded, whereas many references and previous employers will not respond to inquiries or will provide very limited information.

Social media also provides a glimpse into the personality or past conduct of an applicant that is not discernible from a resume or even an interview.

3. What can social media tell an employer about a job applicant that is relevant to the work environment that other methods cannot?

First, an employer can cross-check information on an applicant’s resume, especially with sites such as LinkedIn. Employers also may find comments or other information that demonstrates an applicant’s attitude toward work in general or toward other jobs and employers.

However, employers need to balance these benefits against the risks of potential claims of discrimination, such as an applicant alleging that she was not hired because the employer learned of a disability while searching social media, or even an applicant claiming that an employer’s review of social media had a disparate impact on a minority group because that group has a limited presence on sites such as LinkedIn.

Employers also can learn too much information if, for example, they see that an applicant’s social media presence indicates a propensity for driving under the influence and yet still hire the applicant for a job that involves driving for the company.

4. Have the new social media laws that have been passed by various states forced employers to change their approach in conducting research on job applicants? Why or why not?

Some employers ask applicants to provide them password or other access to an applicant’s Facebook page or other social media so that the employer can view postings that are not generally available to the public.

In the last few years over 20 states have passed laws prohibiting employers from demanding such access from applicants or employees. Employers should be careful to check state laws in each state in which they recruit or hire employees.

5. What legal arguments can be made in favor of employers gaining access to a job applicant’s social media page(s)

Employers generally argue that there is nothing prohibiting them from viewing publicly available information, nor should they be prohibited from reviewing non-public information when the applicant voluntarily consents to granting the employer access. That is no different than asking an applicant a question in an interview.

Interestingly, a federal court in California recently addressed a slightly different issue by dismissing a claim that LinkedIn Corp. violated the Fair Credit Reporting Act by providing employers with an online feature that allows businesses to check prospective employees’ references without the applicants’ knowledge.

The court found that the reference searches could not be considered “consumer reports” under the law and that LinkedIn was not a “consumer reporting agency” because the plaintiffs had voluntarily provided their information for the express purpose of being published online.

Get up-to-date news and expert analysis from respected practitioners and Bloomberg BNA's legal editors, and practical research tools with a free trial to the Labor & Employment Law Resource Center.