New Jersey Law Journal

VOL. 207 - NO 9 FEBRUARY 27, 2012 ESTABLISHED 1878 EMPLOYMENT LAW The Risky Business of Screening Social Media in the Hiring Process

By Louis L. Chodoff and es the employer’s legal risk. access to these materials. Amy L. Bashore Twitter. An information network, The Potential Sources of Twitter allows users to share short inkedIn, Facebook, Twitter and Social Media Information comments, called “tweets,” in a streaming blogs. Social media have prolifer- A basic understanding of the following fashion. An employer can “follow” a Lated in recent years and their use primary sources of social media is necessary Twitter user to view their postings. by individuals — including potential prior to determining whether to incorporate Blogs, Forums and Message Boards. employees — is beyond commonplace. social media into the hiring process and Blogs, forums and message boards may be Facebook has more than 150 million designing a program for its use. oriented around a topic, including industry- users in the United States. As of February Google and Other Search Engines. centered sites, or dedicated to a particular 2010, Twitter reported that its users were The most basic source of social media is individual. issuing 50 million tweets per day. a search engine, such as Google, Yahoo or Employers are taking notice. A Bing. These search engines allow employers Whether to Incorporate Social Media 2009 study by CareerBuilder concluded to search for general web content involving Into the Hiring Process that 45 percent of employers used so- an applicant as well as images, videos and The temptation exists to simply follow cial media to screen applicants. Should blogs. the lead of other companies, but employers employers incorporate social-media re- Facebook, BranchOut and BeKnown. should evaluate their own individualized search as part of their hiring process? Social networking sites, such as Facebook, need for reviewing social media in hiring If you are one of the many em- allow users to post pictures and comments, decisions. If an employer has had success ployers who look to social media to send and receive messages and identify with its current practices, it may be evaluate applicants, or are considering certain personal information about unnecessary to incur the additional risks of incorporating social media, what tips, themselves. These sites typically allow using social media. Employers should also tricks and pitfalls should you be aware a user to determine how much content is evaluate whether a more robust interview of? This article reviews the preliminary publicly accessible and may effectively process or other alternatives would better considerations for deciding whether allow users to block employers from achieve their goals. your business should adopt a program accessing their information. BranchOut Social media may provide a real of incorporating social media in the and BeKnown are similar, professional- benefit, however, for an employer who hiring process, and recommendations focused sites. faces overwhelming numbers of applicants for an effective program that minimiz- LinkedIn. LinkedIn, another social for open positions, as well as those who networking site, typically includes more have been disappointed by some of Chodoff is a member, and Bashore is business-oriented information about their past hires or experienced difficulty an associate, in the labor and employment individuals. obtaining meaningful information from group at Ballard Spahr in Cherry Hill. YouTube. YouTube allows users to prior employers. On the positive side, these Chodoff is also a partner in the firm’s share videos they have created with others employers may learn that an applicant litigation department. over the Internet. Typically, anyone has is active in industry-focused groups or

Reprinted with permission from the FEBRUARY 27, 2012 edition of New Jersey Law Journal. © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. 2 NEW JERSEY LAW JOURNAL, FEBRUARY 27, 2012 207 N.J.L.J. 606 blogs, with writing that is concise and tos, videos or comments of applicants such content which would justify an in- insightful. Conversely, social media may engaging in activities such as excessive vasion of privacy suit. But employers expose applicants who have engaged in alcohol use or “unbecoming” conduct. should not send a “friend request” to an illegal conduct, provided false or misleading Many states, however, have laws pro- applicant or engage in any efforts to cir- information, or merely lack good writing hibiting employers from making em- cumvent privacy protections and expec- skills. ployment decisions based on legal off- tations on social-media sites. The first step is to determine what the duty conduct. Recommendations for Minimizing Risk social-media screening process is intended to Section 7 Rights. The National La- The potential legal issues raised by achieve, and to tailor a program accordingly. bor Relations Act protects employee incorporating social media into the hir- If an employer is most concerned about speech that constitutes protected con- ing process should not be a deterrent inappropriate behavior, it may choose certed activity even if the employee is for employers. Instead, employers must to focus on social-media sites involving not a member of a union. Social-media be aware of the need to design a pro- personal content. Those concerned about sites may contain such protected speech. gram that addresses such concerns. As résumé fraud may find LinkedIn is sufficient. For example, an applicant may have an initial matter, any employer should But if the screening process is designed to tweeted or posted comments regarding consider its goals when using social me- locate experienced employees, then blogs the working conditions at his or her for- dia in the hiring process and develop a and industry forums are likely the best mer employer, such as complaints about program tailored to meet those goals, source. If an overall picture of an applicant compensation or treatment by a former being careful to limit the review of so- is desired, an exhaustive search may be supervisor. The National Labor Rela- cial media to that which is necessary to appropriate. tions Board has been focused on Section achieve the goals. Searches of social Employers should also determine at 7 rights in the context of social media. media should be conducted consistently what point in the hiring process to introduce Arrests and Convictions. Many for all applicants within a job classifica- a social-media search. If the problem is an states have laws concerning the use of tion. Employers should also designate overwhelming number of applicants, an arrest and conviction records in em- an individual who is not involved in the employer may find social media useful to ployment decisions. In addition, the hiring decision or any part of that pro- narrow the field. Other employers may be EEOC has declared that the use of such cess, to review social-media content and satisfied with incorporating social media information creates a disparate impact cull out any protected information, such only after narrowing the pool or as a final on certain groups and should not be as an applicant’s protected class, medi- screening. Whatever the goal, it should drive considered unless job-related and con- cal or genetic information, protected the social-media program. sistent with business necessity. Some concerted activity, off-duty conduct or states and the EEOC are also moving to arrests and convictions (to the extent re- Potential Issues Raised by Social Media restrict the use of information concern- quired by applicable law). Once the decision is made to incor- ing the creditworthiness of individuals Third-party services are available to porate social media, employers should in employment decisions. Employers conduct such screening. However, the be prepared to address the types of in- should be cautious when social media Federal Trade Commission recently is- formation they may find, and the related reveals such information concerning an sued a closing letter concluding that such problems and risks this information may applicant. companies are subject to the Fair Credit pose. Accuracy. The accuracy of social- Reporting Act, and that employers must Protected Class or Medical Infor- media content is a two-fold problem. therefore provide employees with notice mation. Social-media sites may provide First, it may be difficult to confidently and obtain their consent prior to collect- information that an employer would oth- locate information on an applicant. Al- ing such information. Consequently, erwise be prohibited from soliciting or though the number of Facebook users we recommend conducting the review relying upon during the hiring process. suggests there is a good chance any ap- of social-media information in-house. For example, an applicant may identify plicant would have an account, it also The responsible employee should be his or her birth date on a Facebook page means there may be several accounts trained in the various employment laws. or list affinity groups suggesting his or with the same user name. Applicants In addition, employers should develop her religion. Similarly, an employer may also may not provide strictly accurate internal procedures for reviewing and have access to medical or genetic infor- information where the site is personal or using social media in the hiring process, mation, such as when an applicant dis- social or where the site provides content including clear guidelines for quarantin- cusses his or her own or a family mem- by other users, such as the comments ing protected information. Consultation ber’s illness, the use of which would run page of Facebook. This could result in with legal counsel to assess the need for afoul of the Americans with Disabilities either an overly negative or overly posi- social-media resources, develop a pro- Act or the Genetic Information Nondis- tive image of an applicant. gram to achieve goals, design internal crimination Act. Privacy. For publicly disseminated procedures and train the employees in- Off-Duty Conduct. Employers rely- information, applicants do not have a volved can help to minimize the inher- ing on social media may encounter pho- reasonable expectation of privacy in ent risks involved in this process.