In today's digital age, employers have a world of information at their fingertips through which they can learn about current and prospective employees. A quick online search can yield information far beyond what an individual includes in his or her employment application. To make sure a candidate is qualified for a position within an organization, companies may be tempted to search for an applicant's information through social media sites like Facebook or LinkedIn. However, this could result in unintended liability if not properly used.
Recently, a federal district court in California was faced with the issue of whether LinkedIn's "Reference Search" product, a tool which allows companies to search for people who have previously worked with a particular individual, violated the federal Fair Credit Reporting Act (FCRA). Ultimately, LinkedIn won by demonstrating that since the information it supplies about an applicant is input by that individual, the tool cannot violate the FCRA.
Despite this victory for LinkedIn, employers should exercise caution before using LinkedIn, Facebook or any other form of social media to learn information about current or prospective employees. Before a company begins accessing the profiles of prospective employees, the company should question why it is doing so in the first place. What information does the company hope to gain that is not available through the candidate's resume or employment application? Is that information directly related to the hiring process? If not, the company may be infusing unnecessary risk into the hiring process.
As a general rule, employers are free to assess information that is publicly available about potential candidates, which includes information on an individual's social media profile(s). However, when businesses use any form of social media to gather intelligence concerning prospective employees, they run the risk of being accused of unlawful discrimination if they learn information on which they are prohibited from basing the hiring decision. For example, if a prospective employer were to look up my LinkedIn profile, they would be able to learn about my professional experience, but they would also be able to see my photograph and would therefore learn my gender, race and approximate age—all information which may not be immediately apparent from the resume I submitted.
Because LinkedIn allows users to post information about their interests and languages spoken, a LinkedIn user's profile could also contain information about their country of origin, interest groups with which they are associated and more. If a company accesses a candidate's LinkedIn profile and thereafter does not hire that candidate, the rejected candidate could assume that the company based its decision on a protected classification (such as race, sex, age, sexual orientation or union activity) and subsequently file a claim of discrimination. While the rejected candidate bears the burden of proving that discrimination occurred, and there are certainly defenses that companies can raise when accused of discrimination, a company that takes it upon itself to access the social media profiles of a prospective employee may face additional hurdles in litigation than if it had relied on the applicant's resume alone. If a company elects to use social media to research prospective candidates, it should carefully plan out its social media strategy in an attempt to minimize risk. Among other factors, businesses should consider the following:
1. Choose Social Media Carefully
More often than not, LinkedIn users tailor their profiles to only include information that is helpful to advancing their career in their chosen profession. In contrast, Facebook users and those who maintain personal blogs often include significant personal information, such as their family status, sexual orientation and other information that companies generally should not consider in the hiring process. If a company is determined to use some form of social media to evaluate candidates, LinkedIn may be a safer alternative to viewing a candidate's public Facebook profile or personal blog. If a company is later accused of discrimination because it accessed a candidate's public LinkedIn profile during the hiring process, the company could argue that the fact that it researched the candidate through LinkedIn rather than other social media sites is indicative of an intent to obtain and consider only job-related information.
2. Develop a Social Media Policy
If a company elects to use LinkedIn or other social media to assess potential candidates for employment, it should develop a policy outlining which information can and cannot be considered from the profile. The company may even want to implement a double-blind system, where one person retrieves the candidate's LinkedIn profile and then redacts all personal, non-job-related information before disclosing the contents of the profile to the individual(s) responsible for making the hiring decision. By removing photographs and any other information about the LinkedIn user's protected classifications before sharing the profile with the company decision maker, the company may be able to demonstrate that the decision maker did not know the candidate's sex, race, age, sexual orientation or other protected classification when making the hiring decision. Therefore, the decision maker could not have based the hiring decision on such protected classification, safeguarding the company from litigation.
3. Do not request login credentials
If businesses elect to use social media, they should stick to only information that is publicly available. Under almost no circumstances should a company require candidates or employees to disclose the user names, passwords or other login credentials associated with their personal social media accounts.
