Creeping on Candidates: Liability Risks of Using Social Media in Hiring

By Amanda Moore on December 19, 2013 in Employers, Recruiting Tips

Liability Risks of Using Social Media in Hiring to Research Candidates

A recent survey conducted by Harris Interactive©, suggests that a growing number of companies use Social Media to research job applicants. Thirty-nine percent of all companies surveyed admitted to trolling on Social Media, up from 37 percent in 2012. The survey further showed that nearly HALF of the hiring managers who use Social Media in the hiring process declined to hire a candidate because of negative content they found on the applicant’s Social Media public pages.

What are some of the reasons for which hiring managers pass on a good applicant due to their social networking accounts? Display of racy photos or personal information, weekend recaps of said candidate binge drinking or using drugs, bad-mouthing former employers, colleagues, or clients, as well as poor grammar and writing skills.

While social sites provide a special glimpse into a candidate’s lifestyle beyond what is stated on the resume, there are liability risks that all employers should consider before logging onto the internet to checkout a candidate’s Facebook page.

Accidental Discrimination

There is federal legislation that protects employees from discrimination in the workplace, including Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces these protections against employers. When an employer extends the screening process by checking an applicant’s social media accounts, the employer may violate one of these anti-discrimination laws.

RS4223_20131016_154408Here’s how it happens. Many companies stress the importance of building a strong “company culture” (a favorite buzzword in the HR realm). For example, let’s say Sally Recruiter is hiring to fill a sales position in a male-dominated sales department. An applicant named Adrian Smith applies for the position on an online job board. Adrian submitted a glowing resume with the requisite experience. The hiring manager checks Facebook to put a face with the name on the application and sees that Adrian is a mid-aged woman with three kids and a husband. Sally Recruiter declines to offer Adrian an interview because according to Adrian’s persona on Facebook, she wouldn’t be a good fit in the sales department’s culture. Here, the recruiter has just discriminated against Adrian, in the name of “company culture” based upon Adrian’s age and gender.

Inaccurate Information

When an employer extends the applicant-screening process through social media, the applicant has no control over what information the hiring manager uses to judge his/her fitness for the job. This creates considerable risk that the hiring manager may intake inaccurate information. First, an applicant’s social media account may have been hacked. It’s common in the age of social media to login to your Facebook or Twitter, only to realize that it has been hacked, and your account has been posting bizarre photos with a link attached. Second, an applicant’s social media “friend” may have posted controversial content on his/her profile without permission. Third, an applicant may have unintentionally posted content he/she intended to stay private.

Have YOU ever sent an edgy text message or taken a racy photo with the intention of it staying private? Would YOU want an employer to judge your character based upon that content? I didn’t think so. When hiring managers use the accessibility of social media to extend the hiring process, they may misjudge the character of a candidate and in-doing-so disqualify the company from hiring an outstanding person.

Thanks for reading. For more input on best hiring practices, connect with CMI on LinkedIn.


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