How Social Media Influences Hiring Decisions

Employers’ use of social media in hiring decisions presents a host of conundrums for employees and employers alike, as it blurs the line between personal life and work. Nevertheless, social media has become a part of the fabric of our society, and no one can safely assume that “private” posts will not be disclosed or discovered by persons who were not the intended recipients.

According to a recent survey by CareerBuilder.com, the largest online employment website in the U.S., potential employers are increasingly turning to social media as a part of the vetting process for new hires. Of the survey’s responding employers, 51% confirmed that they had found content on social media sites that caused them not to hire a job candidate. Some of the most common reasons stated for the decisions not to hire were: candidates had posted provocative or inappropriate photographs or information; they had posted images of themselves drinking or doing drugs; they had posted inflammatory information about a previous job or co-workers; their postings indicated poor communication skills; their postings contained discriminatory comments (such as making derogatory references to one’s race, religion or gender); they had lied about their qualifications; and they shared confidential information they had gained from a previous job.

Deciding whether to hire someone based on lawful off-duty conduct can be a risky and slippery slope, and could lead to claims of refusal to hire based on a protected category. There are many questions that an employer is prohibited from asking at the hiring stage (particularly those related to age, race or disability), but what if those facts are easily discernible from a social media search? If a potential employer decides not to hire a job candidate who posts that she has just discovered she is pregnant, does that expose the employer to claims of pregnancy discrimination?

Say if an employer conducts a social media search on an applicant and discovers a picture of the applicant attending a skinhead, white supremacist rally, where no “laws” are being broken. Can the employer refuse to hire that individual? Some employers may refuse to hire that applicant based on his “poor judgment,” i.e., the applicant’s choice to publicly announce a controversial and racist affiliation on a social media site. But what if the applicant was involuntarily “tagged” by someone else in the picture and did not intend to share the information? Does this violate the employee-candidate’s right to privacy and free association?

Employers should carefully develop a social media policy that covers hiring policies, including policies that establish what, if any, publicly available information can be used in making employment decisions and who is allowed to conduct the company’s social media searches. It is also important that employers routinely train management on how to effectively implement those policies. Employers who use social media in connection with their hiring processes may want to consider limiting their social media searches to professional networks such as LinkedIn instead of more casual sites like Facebook, or to consider using an outside consultant, to decrease the likelihood of inadvertently letting social media content influence an employment decision in a way that could be considered inappropriate.

For more information or assistance with your office’s HR policies, including policies on use of social media in the workplace, contact Labor and Employment Law attorney Patricia Pannell.

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