Prepared Expressly for OutSolve, LLC By Andrews Kurth Kenyon LLP
Social media use among American adults is at an all-time high. A recent study conducted by the Pew Research Center finds that approximately two-thirds of American adults (68%) use at least one social media outlet, representing a giant spike from 7% a decade ago. Nearly eight out of ten Americans who access the internet (79%) use Facebook and approximately one-third use Instagram (32%) or LinkedIn (29%).
Social media has not just changed the way we communicate, but it has also created valuable opportunities for businesses and organizations to identify job applicants and learn more about them. Naturally, employers are turning increasingly to social media sites to recruit prospective employees and to screen applicants. Research from the Society for Human Resource Management (“SHRM”) reveals that 84% of organizations are using social media for recruitment and another 9% plan to do so in the near future. Using social media to screen and hire applicants presents many great advantages: It is inexpensive, quick, and provides employers an interesting insight on applicants that is not usually gained from traditional methods such as interviews and resume/application reviews.
Despite the clear benefit of social media screening, employers should also understand the legal risks involved and ensure that the information found, especially information pertaining to an applicant’s race, ethnicity, age, religion, disability, or other legally-protected category, is not used in any unlawful discriminatory manner. Federal contractors and subcontractors are subject to many special employment laws and regulations and, therefore, face additional scrutiny to comply with discrimination and affirmative action laws and regulations. The guide below provides a few simple yet effective practices to help ensure compliance.
Tip No. 1: Create a social media screening policy.
Before any screening begins, employers should develop a social media screening policy (ideally, with the aid of legal counsel) to ensure that the practices utilized are both legal and consistent. This policy should reflect an overarching policy that all hiring decisions will be made using non-discriminatory and legitimate predictors of job performance. The policy should address the following: • Who will conduct the screening? • When during the application process will the screening be conducted? • Which positions will be screened? • Which sites will be searched? • How will the search be conducted? • What happens when a search uncovers a “concern”? • What happens with the search results?
We provide guidance to several of these details below.
Tip No. 2: Wait to screen until after the interview. Delaying social media searches until after an interview reduces the risk of explicit or implicit bias in selecting candidates for interview, and may help protect employers from some discrimination claims. Social media often provides employers with information pertaining to legally protected categories like an applicant’s ethnicity, age, and/or religion. In addition, people frequently post about other intimate details such as their marital status, political affiliations, or medical conditions. Historically, prior to an interview, an applicant’s membership in many legally protected groups is unknown to human resources or the hiring decision-maker. Therefore, it is advisable to conduct social media searches at the end of the hiring process along with employer references and background checks to minimize risks associated with applicants claiming they were not selected for interviews because of membership in some protected category that the employer discovered on social media.
Tip No. 3: Leave the screening to Human Resources. Whenever possible, and to guard against potential discrimination claims, employers should have someone besides the employment decision-maker or the hiring manager conduct the actual screening, such as a human resources professional or a third-party organization. Keep in mind, however, that the use of a third-party entity may trigger certain notice and authorization procedures. See Tip No. 5 below. Creating a “firewall” between the hiring manager and an applicant helps insulate the employer from future discrimination claims. The human resources professional or third-party should be instructed to look for any red flags in addition to criteria specific to the position, like good judgment. Then, the screener should be asked to give a general recommendation as to the criteria without disclosing any particulars.
Tip No. 4: Do not request usernames and passwords. Legal risks exist when employers ask applicants (and employees) for their passwords to social media sites. Indeed, the following states have passed laws prohibiting employers from requesting that an employee or prospective employee divulge personal social media account usernames and/or passwords: Colorado, Louisiana, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Rhode Island, Utah, Virginia, and Washington. And, Arkansas, Delaware, and Maine have enacted additional laws making it illegal for an employer to require an employee or prospective employee to change his or her media privacy or visibility settings to facilitate an employer’s access.
Tip No. 5: Inform applicants if a third-party will be conducting the screen or a background check. Employers that retain the services of a company that runs backgrounds checks, including social media screenings, regardless of whether a password or username is needed to access the profile, must comply with the Fair Credit Report Act (“FCRA”). In particular, the FCRA requires that employers give written notice and receive an applicant’s consent before requesting a consumer report from a third-party company. Employers must also provide notice before taking any adverse employment action on information contained in a consumer report. Finally, employers must give notice after actually taking any adverse action based on information in the report.
Tip No. 6: Retain relevant documents. Following any social media screen, the person responsible for screening should document (i) the search dates and when the screening took place during the hiring process, (ii) the steps taken during the process, including which social media sites were explored, (iii) the employment-related information gained and provided to the hiring manager, as well as (iv) any employment decisions or actions that were made as a result of the search. In the event an employer discovers something disturbing or disqualifying in an applicant’s social media profile, the employer should document it by printing out the page (or screenshotting it), in case the page is later deleted or altered. Federal contractors and subcontractors should keep these records for two years. After that period, these records should be destroyed in accordance with existing organizational protocols. Although social media screening of applicants should be just one facet of the selection process, it provides employers with a unique and valuable perspective on prospective employees. Employment and legal issues pertaining to social media remains a quickly developing area. As such, employers should consult their legal counsel when creating social media policies and before conducting social media screens.
- Shannon Greenwood, et. al., Social Media Update 2016, Pew Research Center (November 11, 2016), http://www.pewinternet.org/2016/11/11/social-media-update-2016/.
Using Social Media for Talent Acquisition—Recruitment and Screening, Society for Human Resource Management (January 7, 2016), https://www.shrm.org/hr-today/trends-and-forecasting/research-and-surveys/pages/social-media-recruiting-screening-2015.aspx.
- Federal contractors and subcontractors should maintain employment and personnel records for a period of two years from the making of the record, or the taking of a personnel action, whichever occurs later. 41 CFR 60-1.12(a). Those with fewer than 150 employees or a contract of less than $150,000 must keep these records for a period of only one year from the creation of the record, or the taking of a personnel action, whichever occurs later. 41 CFR 60-1.12(a).
This article was prepared expressly for OutSolve, LLC by Britney J.P. Prince and Jason Regas, associates at Andrews Kurth Kenyon LLP. Copyright © 2017. Andrews Kurth Kenyon LLP. This communication has been prepared by Andrews Kurth Kenyon LLP for informational purposes and does not constitute legal advice. A past performance or prior result is no guarantee of a similar future result in another case or matter. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Attorney Advertising.