Hiring in a Social Media World

Social media has become part of common culture with Americans posting more personal information online than ever before. But in hiring situations, access to that personal information is a double-edged sword.

“Studies are showing nearly 50 percent of companies on a national scale are using social media background checks before hiring a job candidate,” said Tara Rawlins, a business social media consultant and owner of Springfield-based Raw Marketing LLC, who recommends all employers perform social media background checks on applicants to see if they are a good fit for the company. “In a technology driven world, a piece of paper with a resume or application on it isn’t enough to truly vet your ideal employee as an employer. Using social media sites to get to know potential employees is a valuable way to learn more about the potential hire, their personality, values and morals.”

Jeff Broyles, owner and managing general agent of Nixa-based Medical Benefits Group, is doing just that.

“I just check public information,” he said of the social media searches he runs on all potential hires. “If most detailed information is blocked, then they are probably hiding something.”

As an insurance broker agency, Broyles said connections employees have via social media are important for to him to know before hiring, adding he uses Facebook and LinkedIn for 90 percent of his searches.

A fine line
However, Springfield attorney Laura Johnson says there is a fine line employers must walk when digging for digital dirt.

“Looking at an applicants personal information creates a risk for a potential employer,” said Johnson, a lawyer with Ellis, Ellis, Hammons and Johnson PC. “There are a couple different scenarios that can play out depending on if an employer accesses the applicant’s publicly-available information or if the employer asks for the applicant’s password and login information.

“Scenario two is a bit more problematic because it is requiring an applicant to give up truly private information, and it opens the employer up to legal actions.”

Johnson said even if information is publicly available, potential employers may still view protected categories of information under Title VII of the Civil Rights Act of 1964.

According to the U.S. Equal Employment Opportunity Commission, Title VII protects applicants and employees from employment discrimination based upon their race, color, religion, sex or national origin. By simply conducting a social media search on a potential new hire, an employer can unknowingly expose themselves to “protected” information.

“That is information you can’t sit down and ask an applicant about, but it is information you can easily view on someone’s Facebook page,” Johnson said. “None of those protected categories should play a part in a decision to hire or not hire someone, because it is unfair to an applicant and ultimately opens a business up to discrimination lawsuits.

“Say you interview John Smith and like him, then read on Facebook he has a chronic back problem or is a Muslim and decide not to hire him – you have just made an illegal employment decision.”

Legal pitfalls
According to the EEOC, several steps in the hiring process could trigger legal violations. The EEOC says basing an employment decision on an applicant’s age violates the Age Discrimination in Employment Act of 1967; knowing if they have a disability violates Title I of the Americans with Disabilities Act of 1990; reading about their family history on Facebook could violate the Genetic Information Nondiscrimination Act of 2008; and even viewing their military history could violate the Vietnam Era Veterans Readjustment Assistance Act of 1974. Currently in committee in the U.S. House, the Fair Employment Opportunity Act of 2011 could prohibit from employers from viewing an applicant’s current employment status before hiring.

In addition, California, Maryland and Illinois have made password-requested social media background checks illegal and 14 additional states have similar laws in motion, Rawlins said.

Rawlins also reminds employers of the old caveat, “not everything you read online is true.”

“Employers should be very cautious when performing social media background checks on potential hires. Some of the popular concerns regarding social media background checks are: The accuracy of information, consumers’ right to online privacy, and website terms of service and intellectual property violations,” she said.

Johnson said Missouri has no social media hiring laws in place yet, but she contends the topic is an “ever changing landscape that must be monitored daily.”

“I don’t recommend employers engage in social media background checks, because I don’t think an employer needs to know about an applicant’s personal life before making a hiring decision. We didn’t have social media for decades before this, yet we still managed to hire people. If a person keeps their personal life and business life separate, there is no need to cross that line and combine the two.”

Johnson likened the process to showing up at an interview and handing your personal diary or journal over to a potential boss.

“I think we can all agree that wouldn’t be appropriate,” she said. “Well how is social media any different?”

However, Johnson said some form of background check should be utilized by employers, protecting them against employee fraud. According to the U.S. Department of Commerce, 30 percent of small-business failure is caused by employee theft, and internal employee-related thefts occur 15 times greater than external theft with employee fraud costing companies more than $400 billion annually.

Both Johnson and Rawlins do not advocate password-requested social media background checks, but Rawlins said, in her opinion, viewing public information online is the future.

“I feel we have come to a point where our written laws haven’t caught up with many new technologies,” she said. “I feel the danger lies in not knowing what future legislation holds and by practicing such controversial techniques as asking for login credentials, this opens the organization up for public scrutiny, a tarnished public opinion or worse.”

Once hired, RAW Marketing encourages all employers to perform periodic social media background checks on all employees.

“It gives the employer an opportunity to monitor what, if anything, their employees are saying about the organization and co-workers,” Rawlins said.