Risks and rewards of using social media during recruitment

The use of social media by employers is now a routine practice. For human resources and recruiters to dismiss social media as a vetting and recruitment tool today would be akin to ignoring e-mail twenty years ago. Millennials account for 36 percent of the U.S. workforce and according to the Bureau of Labor Statistics, they will account for 75 percent of the global workforce by 2025. Given that this group of employees has grown up actively communicating via social media sites and devices, the use of social media is a workplace trend that is here to stay. Social media may be an essential and effective tool utilized during the hiring process, but its use is not without legal risks. The perils and benefits of utilizing social media to (1) recruit candidates by publicizing job openings and (2) conduct background checks on applicants for employment, will be analyzed below, along with important best practices to adopt when relying on social media to recruit your leaders of tomorrow.

Pet Insurance

According to a survey by the American Veterinary Medical Foundation, almost two-thirds of pet owners consider their animals to be members of the family and are willing to go to great lengths to ensure their pets’ health. Offering pet insurance as a voluntary benefit may be a useful and appreciated benefit. The possibility of saving a pet from life-threatening injury and disease has increased. However, the cost of veterinary care has risen as well. Having pet insurance can provide employees with the ability to say “yes” to costly but life-saving operations.

Recruitment Tool

Through social media, employers can reach candidates faster and at a lower cost (and at times, free). Social media tools allow employers to engage with their target audiences and easily identify whether the candidates are a good cultural fit for the company. On social media platforms, like LinkedIn, job seekers can be specifically targeted and chosen from followers, connections, or supporters of the organization. When using social media as a tool for recruiting, employers should remember that social media postings are “advertisements” that must include the appropriate equal employment opportunity (EEO) and/or affirmative action language. Further, the postings must be retained like all other hiring documents as required by company policy and applicable document retention laws.

Verifying an Applicant’s Background

Social media may be a successful recruitment and applicant screening tool, but employers should be concerned with the legal risks associated with social media use. For example, an employer may likely discover information about protected characteristics when viewing candidates’ social media profiles. To this end, from a candidate’s social media profile and picture, an employer may learn his or her likely race, approximate age, religious beliefs, sexual orientation, and more. Users of social media may also commonly post personal information such as medical conditions or family problems that may reveal a disability or need for family leave under the federal or Wisconsin Family and Medical Leave Act.

Discriminatory Hiring Practices

The use of social media as a recruitment tool may also have a disparate impact on the hiring of older workers who may not utilize social media frequently to apply for job openings. In 2012, the Equal Employment Opportunity Commission (“EEOC”), the federal agency that administers and enforces civil rights laws against workplace discrimination, filed a complaint against the National Park Service. The complaint was prompted when a sixty-one year old applicant, who believed she was qualified for the Park Ranger position, was not hired. The EEOC alleged that the National Park Service’s “recruitment of younger people through Facebook and other social networking sites put older workers at a disadvantage as older people use computers less often than younger people.” The complaint was dismissed, in part, because the EEOC failed to introduce any evidence that the National Park Service exclusively recruited through social media. Furthermore, there was no evidence based on the applicants selected to interview that older workers were disparately disadvantaged or excluded during the application process. Nonetheless, the lawsuit highlights the importance of utilizing social media as one tool (but not exclusive tool) to be utilized during the recruitment process.

Although legal risks do exist for employers utilizing social media to recruit and screen applicants, the fact that the employer may learn information about a candidate’s protected status or other personal information does not mean that the employer will use it when making a hiring decision. Furthermore, the same legal risks routinely arise during an interview as candidates often disclose protected information during an interview that an employer cannot consider.

Below are a number of “best practices” to consider when using social media during the recruitment and hiring process:

Do Not Ask For Social Media Passwords. In Wisconsin, employers cannot ask an applicant (or employee) for his or her social media password by law. The law prohibits employers from:

• Requesting or requiring an employee or applicant, as a condition of employment, to disclose access information (e.g., passwords, user names), to a personal social media account or to otherwise grant access to or allow observation of the account
• Terminating or otherwise discriminating against an employee because the employee: refused to provide the employer access to a personal social media account; or opposed the employer’s potential violation of the law, or filed a complaint or testified or assisted in an action against the employer for such a violation
• Refusing to hire an applicant because the applicant refused to provide access to a personal social media account.

Under federal law, asking for an applicant’s (or employee’s) social media password creates a real risk of violating the federal Stored Communications Act. For this reason, employers should only view and consider social media content that is public.

• Use Human Resources. It is best if someone in human resources, rather than a project manager or supervisor, screens candidates’ social media profiles. The human resources professional is more likely to know what he or she can and cannot consider.
• Wait. Check social media profiles after an applicant has been interviewed or been offered a conditional offer of employment, when his or her protected status (if any) is likely already known.
• Be Consistent. Do not look at only one applicant’s social media profiles. Employers should develop legitimate business policies for determining when social media screenings are appropriate and perform such checks on a consistent basis. For instance, the employer might decide such screening is necessary only for supervisors or office workers.
• Document Your Decisions. Print out the page containing social media content on which an employer bases a legitimate hiring decision and record any lawful reason for rejection, such as harassing, discriminatory or illegal conduct on a public social media site. This helps to protect an employer if damaging content has been deleted by the time a hiring decision is challenged by an applicant.
• Consider the Source. Focus on an applicant’s own social media posts, not on what others have said about him or her. You may want to give the candidate a chance to respond to findings of worrisome social media content.
• Other Laws May Apply. If you retain a third party to perform a social media screen, you are probably subject to the federal Fair Credit Reporting Act, which contains specific applicant disclosure and authorization requirements, as well as pre-adverse and adverse action notification requirements. Also, Wisconsin state law prohibits adverse action based on off-duty use of a lawful product (e.g., tobacco or alcohol), so employers should be cautious in refusing to hire an applicant for “questionable” but otherwise lawful off-duty contact.

By Tiffany L. Hutchens, Attorney, Husch Blackwell LLP