More companies are using social media networks to look for good job candidates, since the method is easy and cost effective, and it gives employers access to a high number of potential candidates and more insight into their personalities without actually having to meet them all. But the recruitment tools do come with some compliance dangers to consider.
Companies that misuse information from candidates' profiles to pre-screen job applicants may result in potential violations of Title VII of the Civil Rights Act, or other federal and state laws, say lawyers. “There is no legal issue when employers advertise job openings on social media channels to recruit talents. However, if employers obtain information under the class protected by Title VII or other state and federal laws when using this method of hiring, then they may run the risk of violating those rules,” says Philip Gordon, shareholder and chair of the privacy and data protection practice group at law firm Littler Mendelson.
Unlike traditional resume gathering, social media sites often include such information as age and religious beliefs and other sensitive information. And companies are using them more often. According to a survey conducted by the Society for Human Resource Management (SHRM) in April, 56 percent of the 277 survey participants claimed that they currently use social networking Websites during the recruiting process, compared to just 34 percent in 2008.
Susan Gross Sholinsky, member of the labor and employment practice group at law firm Epstein Becker Green says the latest trend to recruit workers through this channel is clearly on the Equal Employment Opportunity Commission's radar. She says a trial attorney at the EEOC, Edward Loughlin, has been offering employer training programs on issues surrounding employers' use of social media. During these presentations, he has noted that the EEOC will use the same analysis regardless of whether the information based upon which an adverse employment action is taken was obtained via social media or via traditional means, such as an in-person interview. “Employers should be careful not to make decisions based on information obtained via social media when they know it is unlawful to ask the question that would elicit the information during an interview,” she says.
Title VII of the Civil Rights Act makes it unlawful for any employer to make employment decisions based on color, race, religion, sex, or national origin. In addition, an employer is also prohibited to limit, segregate, or classify employees or applicants for employment in any way that will deprive any individual of employment opportunities because of the criteria mentioned earlier. Meanwhile, some federal and state rules prohibit employment discrimination based on age, veteran status, disabilities, sexual orientations, and other classifications.
According to the SHRM Poll, survey respondents ranked LinkedIn as the most popular recruiting networking site (95 percent). Facebook (58 percent) and Twitter (42 percent) were the next two sites most often used.
And companies aren't just using them to staff lower and mid-level positions. When respondents were asked to rate the effectiveness of these Websites to recruit upper management, such as chief executive officers and chief financial officers, 52 percent said they were efficient, compared to just 22 percent who said they were in 2008.
The Legal Issues
The danger of using social media to obtain information about job applicants lies in the absence of controls on the information available. Social media channels and online search engines will produce all types of unfiltered information to employers including information that are under the protected classes of discrimination law.
“The problem is that you have no control on the information you may find. You may find out information that the job applicant is a member of certain religious group or is participating in certain sexual orientation rights group,” says Jeffrey Landes, a member of the labor and employment practice group at law firm Epstein Becker Green.
“Employers should be careful not to make decisions based on information obtained via social media when they know it is unlawful to ask the question that would elicit the information during an interview.”
—Susan Gross Sholinsky,
Member, Labor & Employment Practice Group,
Epstein Becker Green
“By law, including on written applications, employers should not ask questions in order to get information about age, race, gender, and other protected information. If your ability to make an unbiased employment decision is affected by the information, then you run the risk of being held to be in violation of the law,” Says David Gallai, a partner at law firm Chadbourne & Parke.
Gordon adds another concern when using social media networks for recruiting is the availability of applicants' pictures on their profile page. “If an application process typically includes face-to-face interviews and the picture obtained through the social media sites influence employers from initiating the contact because of age, race, and other factors, then it can be an issue,” he says.
Companies that limit hiring procedures to professional social media sites could also risk bias in another way. “This practice may have a disparate impact on certain minorities, who are statistically under-represented on professional social media sites,” she says Sholinsky.
Remedial Actions
Lawyers say companies that use social media sites as a recruiting tool can avoid legal risks by adopting consistent practices in their recruitment process. “It is always important to be consistent. Give similar treatment to all job applicants. If you are going to do an internet search on one job applicant, make sure that you do the same search on all the other applicants. It should not be a random practice,” says Gallai.
SOCIAL MEDIA AS HIRING TOOL
The following chart from the Society for Human Resource Management compares the use of social media to recruit potential job candidates in 2011 vs. 2008.
Source: Society for Human Resource Management.
Have corporate policy in place when it comes to the subject, says Landes. “Many companies do not have a policy in place when using search engines or social media to check on applicants.”
According to Sholinsky, another practice that can minimize legal risks is to separate the function of conducting the social media searches from the hiring manager and share only information that is not likely to lead to a potentially discriminatory decision with the hiring manager. She also advises companies to adopt rules to state specifically when social media can be used during the hiring process and create guidelines as to how social media searches are to be performed and the appropriate search terms personnel can use.
She says it is also important to remind hiring managers and human resource personnel that they must rely on objective criteria to evaluate job candidates. “Clearly document reasons for a candidate's rejection, which are consistent with the job's requirements,” she says.
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