Over the past decade, employers have commonly used social media, including LinkedIn, Facebook, Twitter, Instagram, and YouTube, to gather information about prospective employees as part of their hiring process. Employers may use social media either to recruit candidates by advertising job openings and targeting certain applicants, or to perform background checks to confirm that a job candidate or applicant is qualified for a particular position.
The law has not necessarily caught up to all of the latest trends in technology. Around half of the states have enacted laws to stop employers from asking for password and username information from prospective employees or otherwise accessing portions of a prospective employee's social media accounts. For example, California law prohibits employers from asking for the social media passwords of their current or prospective employees. Other states that provide protection to job applicants and employees so that they do not need to divulge social media passwords or provide account access are Maryland, Virginia, and Illinois. However, employers can still conduct searches of information that is publicly available on social media.
While employees may be concerned about employers accessing information that they assumed was private or not likely to be considered by employers, there may also be some risks to employers in seeking out the information available online. In some cases, a prospective employer or current employer's use of social media in connection with hiring may subject the employer to legal liability.
Potential Discrimination Claims
One issue that may arise in connection with the use of social media is employment discrimination based on a job applicant's protected class. For example, if an employer uses targeted advertising on social media, it may be asked to choose the audience based on protected characteristics such as race, national origin, age, or sex. When an employer posts a position with its company by using targeted advertising, it may violate federal statutes such as Title VII of the Civil Rights Act or the Age Discrimination in Employment Act. It may also run afoul of state or local laws. This can give rise to claims of disparate treatment or disparate impact.
Sometimes employers use social media to look at job applicants' profiles. The purpose is to find desirable candidates, but it can also trigger discrimination claims. Social media can reveal race, sexual orientation, gender identity, national origin, religion, a disability, and other protected characteristics that may not be revealed in a resume. If you can show that your job candidacy was adversely affected by a prospective employer's social media search, when the search results included information about your activity off-duty or your protected class, the prospective employer may be liable in an anti-discrimination case.
In one case, for example, a plaintiff was not hired for a particular position for which he was more than qualified. An investigation revealed that during the search process, a committee member found his personal website referencing religious topics, including statements that questioned the theory of evolution. The court in that case found that there was a genuine factual issue about whether religion was a motivating factor in the company’s failure to hire the plaintiff.
Background Checks by Consumer Reporting Agencies
Some employers use third parties that are considered consumer reporting agencies to conduct background checks on social media. This is to avoid obtaining information about a protected status so that the employer is shielded from certain legal claims. However, a consumer reporting agency needs to comply with FCRA rules, such as giving notice that the employer may get a consumer report for employment purposes.