Social Media Invades and Modernizes Employment Practices

Social media is a great tool for employers who want to fully assess the professional qualifications and cultural fit of an individual. On the other hand, employers will often be exposed to information that is illegal to use in making employment decisions such as hiring, disciplining or dismissing candidates or employees. Reviewing social media outlets potentially communicates much more about the individual ' including an applicant's race, age, religion, disabilities and national origin, as well as health, lifestyle and privacy issues ' which prudent employers would not ask about in an interview or when making employment decisions.

Employers who use social media as a tool to learn more about employees or job applicants must use only information that is outside of protections established by civil rights, anti-discrimination laws and the National Labor Relations Act (NLRA). This is a difficult task because employers cannot simply forget the information they have discovered, and sometimes it's difficult for employers to isolate the factors that led to a decision not to hire a candidate or discipline an employee.

As might be expected, employers' forays into social media have spawned a significant increase in lawsuits and administrative actions alleging discrimination or unfair labor practices. Courts and legislators are actively looking into how employers use social media, and are trying to balance an employer's right to protect his or her business with an employee's interest in free speech and privacy.

Discrimination Doesn't Have To Be Deliberate

Some discrimination isn't deliberate, but it's difficult for employers, or anyone else, to compartmentalize what they learn about a person and to ignore their own biases. As an illustration, a Carnegie Mellon University study on employers' use of social media found that applicants whose social media profiles indicated they were Muslim were less likely to be interviewed than Christian applicants. See, Hyman, J., “Social Media Background Checks as Discrimination,” Workforce, Nov. 25, 2013 (available at www.workforce.com). In that study, researchers used dummy employee profiles, but if a real employer was found to have created this imbalance, it would be vulnerable to charges of discrimination.

And if the discrimination is deliberate, an employer's review of social media may turn out to be useful to the employee's legal team. During discovery in one case, plaintiff's lawyers found a sticky note attached to a file with the notation “too old.” Since the employer never met the applicant, there was no way of knowing the age of the applicant. However, the employer had a policy of reviewing social media sites. The case settled for a large sum of money. See, Levinson, M., “Social Networks: A New Hotbed for Hiring Discrimination Claims,” CIO , Apr. 18, 2011 (available at www.cio.com).

Disparate Treatment and Disparate Impact

There are two theories of discrimination: disparate treatment and disparate impact.

Disparate treatment occurs when an employer intentionally treats people differently based on protected statuses such as race, disability, gender, age or religion. An example of disparate treatment is when an employer only asks women applicants about plans to have children. The best way to avoid disparate treatment claims is to ask all applicants the same questions.

Disparate impact occurs when the employment process is facially neutral but disproportionately affects a class of applicants. For example, requiring a certain level of education may result in racial discrimination because, statistically, one segment of society does not obtain degrees as frequently as others.

Employers should also be wary of relying on social media for information because it can be inaccurate and outdated, or it could even be posted falsely by someone else. According to one study, there are more than 81 million fake Facebook profiles. See, “Facebook Statistics,” Statistic Brain, Jul. 1, 2014 (available at www.statisticbrain.com/facebook-statistics).

Despite the perils, there are benefits to using social media to vet job applicants. Social media pages can provide a wealth of useful information that can be used in a hiring decision. Employers can use social media to determine whether an applicant has appropriate professional demeanor and communications skills, possibly disparages their current or past employers, or divulges confidential or proprietary information. Social media postings can also reveal character issues, such as the fact that a particular applicant is comfortable making disparaging racist comments. Additionally, employers can compare what they see on social media to a job application to test an applicant's truthfulness.

Four Ways to Minimize Risk

Discrimination or unfair labor practice claims cannot always be avoided, but employers can use these tactics to protect themselves from discrimination claims:

1. Employ the “Dutch Policy.” The so-called “Dutch Policy,” promulgated by the Dutch Association for Personnel Management & Organization Development, requires that employers discuss any information obtained from social media sites with the applicant and treat all information as confidential. This gives the applicant an opportunity to respond to false information.
2. Disclose Intentions. Employers should inform applicants at the start of the application process that social media will be used in the vetting process. This puts the applicant on notice, and gives them the chance to clean up or shut down their social media profiles, if they wish to protect their privacy.
3. Be Consistent. Employers should standardize the hiring and interview processes. Consistency is a strong defense in discrimination cases. Employers may also wish to document detailed reasons for not hiring an applicant.
4. Build a Wall. Removing hiring decision-makers from the social media screening process adds another level of protection for employers. Having a trained third party review applicants' profiles may allow the employer to utilize the benefits of social media screening without burdening the employer with unfiltered information. The more removed the hiring personnel are from the social media screening, the better for the employer.

Conclusion

Since social media has become unquestionably ubiquitous, many issues will likely arise down the road that are hard to predict at this time. Progressive employers are looking for innovative ways to balance the risks and benefits of adopting hiring practices related to social media. More conservative employers may avoid the use of social media altogether because of the associated dangers. There are risks and rewards to be weighed for either option, and each employer must make his or her own decision.

Morey Raiskin is a partner and employment law attorney with Burr & Forman LLP, in Orlando, FL. Raskin counsels management of both large and small employers in most aspects of labor and employment law, including those involving the EEOC, DOL and FCHR. He also serves as an advisor to his clients, counseling them on workplace issues they face in day-to-day operations. He may be reached at 407-540-6675 or by e-mail at [email protected]. Celeste Thacker is a summer associate with Burr & Forman, and a student at the University of Florida's Levin College of Law.

Facebook now has more than 1.5 billion users worldwide, and chances are, most employment applicants are members of the ubiquitous social media site. LinkedIn, Twitter and other social media programs also have millions of members. For employers, these sites present a potential treasure trove of information on applicants, but mining this information for use in recruiting, hiring, firing and monitoring of employees is fraught with risk. Nonetheless, some studies show that 40% of employers search social media during the hiring process in order to weed out candidates before in-person interviews. While there are not currently any laws in the United States forbidding employers from gleaning information from social media ' whether during the hiring process or at any point in the employment relationship ' improper use can get them into trouble.

This article explores practices to avoid and offers guidelines on how to use social media in ways that minimize exposure.

Too Much Information?

Social media is a great tool for employers who want to fully assess the professional qualifications and cultural fit of an individual. On the other hand, employers will often be exposed to information that is illegal to use in making employment decisions such as hiring, disciplining or dismissing candidates or employees. Reviewing social media outlets potentially communicates much more about the individual ' including an applicant's race, age, religion, disabilities and national origin, as well as health, lifestyle and privacy issues ' which prudent employers would not ask about in an interview or when making employment decisions.

Employers who use social media as a tool to learn more about employees or job applicants must use only information that is outside of protections established by civil rights, anti-discrimination laws and the National Labor Relations Act (NLRA). This is a difficult task because employers cannot simply forget the information they have discovered, and sometimes it's difficult for employers to isolate the factors that led to a decision not to hire a candidate or discipline an employee.

As might be expected, employers' forays into social media have spawned a significant increase in lawsuits and administrative actions alleging discrimination or unfair labor practices. Courts and legislators are actively looking into how employers use social media, and are trying to balance an employer's right to protect his or her business with an employee's interest in free speech and privacy.

Discrimination Doesn't Have To Be Deliberate

Some discrimination isn't deliberate, but it's difficult for employers, or anyone else, to compartmentalize what they learn about a person and to ignore their own biases. As an illustration, a Carnegie Mellon University study on employers' use of social media found that applicants whose social media profiles indicated they were Muslim were less likely to be interviewed than Christian applicants. See, Hyman, J., “Social Media Background Checks as Discrimination,” Workforce, Nov. 25, 2013 (available at www.workforce.com). In that study, researchers used dummy employee profiles, but if a real employer was found to have created this imbalance, it would be vulnerable to charges of discrimination.

And if the discrimination is deliberate, an employer's review of social media may turn out to be useful to the employee's legal team. During discovery in one case, plaintiff's lawyers found a sticky note attached to a file with the notation “too old.” Since the employer never met the applicant, there was no way of knowing the age of the applicant. However, the employer had a policy of reviewing social media sites. The case settled for a large sum of money. See, Levinson, M., “Social Networks: A New Hotbed for Hiring Discrimination Claims,” CIO , Apr. 18, 2011 (available at www.cio.com).

Disparate Treatment and Disparate Impact

There are two theories of discrimination: disparate treatment and disparate impact.

Disparate treatment occurs when an employer intentionally treats people differently based on protected statuses such as race, disability, gender, age or religion. An example of disparate treatment is when an employer only asks women applicants about plans to have children. The best way to avoid disparate treatment claims is to ask all applicants the same questions.

Disparate impact occurs when the employment process is facially neutral but disproportionately affects a class of applicants. For example, requiring a certain level of education may result in racial discrimination because, statistically, one segment of society does not obtain degrees as frequently as others.

Employers should also be wary of relying on social media for information because it can be inaccurate and outdated, or it could even be posted falsely by someone else. According to one study, there are more than 81 million fake Facebook profiles. See, “Facebook Statistics,” Statistic Brain, Jul. 1, 2014 (available at www.statisticbrain.com/facebook-statistics).

Despite the perils, there are benefits to using social media to vet job applicants. Social media pages can provide a wealth of useful information that can be used in a hiring decision. Employers can use social media to determine whether an applicant has appropriate professional demeanor and communications skills, possibly disparages their current or past employers, or divulges confidential or proprietary information. Social media postings can also reveal character issues, such as the fact that a particular applicant is comfortable making disparaging racist comments. Additionally, employers can compare what they see on social media to a job application to test an applicant's truthfulness.

Four Ways to Minimize Risk

Discrimination or unfair labor practice claims cannot always be avoided, but employers can use these tactics to protect themselves from discrimination claims:

1. Employ the “Dutch Policy.” The so-called “Dutch Policy,” promulgated by the Dutch Association for Personnel Management & Organization Development, requires that employers discuss any information obtained from social media sites with the applicant and treat all information as confidential. This gives the applicant an opportunity to respond to false information.
2. Disclose Intentions. Employers should inform applicants at the start of the application process that social media will be used in the vetting process. This puts the applicant on notice, and gives them the chance to clean up or shut down their social media profiles, if they wish to protect their privacy.
3. Be Consistent. Employers should standardize the hiring and interview processes. Consistency is a strong defense in discrimination cases. Employers may also wish to document detailed reasons for not hiring an applicant.
4. Build a Wall. Removing hiring decision-makers from the social media screening process adds another level of protection for employers. Having a trained third party review applicants' profiles may allow the employer to utilize the benefits of social media screening without burdening the employer with unfiltered information. The more removed the hiring personnel are from the social media screening, the better for the employer.

Conclusion

Since social media has become unquestionably ubiquitous, many issues will likely arise down the road that are hard to predict at this time. Progressive employers are looking for innovative ways to balance the risks and benefits of adopting hiring practices related to social media. More conservative employers may avoid the use of social media altogether because of the associated dangers. There are risks and rewards to be weighed for either option, and each employer must make his or her own decision.

Morey Raiskin is a partner and employment law attorney with Burr & Forman LLP, in Orlando, FL. Raskin counsels management of both large and small employers in most aspects of labor and employment law, including those involving the EEOC, DOL and FCHR. He also serves as an advisor to his clients, counseling them on workplace issues they face in day-to-day operations. He may be reached at 407-540-6675 or by e-mail at [email protected]. Celeste Thacker is a summer associate with Burr & Forman, and a student at the University of Florida's Levin College of Law.