Like many employers, you may be mining social network sites (which, for simplicity’s sake, we’ll refer to collectively as “Facebook”) for personal information about individuals applying for jobs with your organization. While it enables you to unearth information that no resume or job interview would reveal, using Facebook to check up on job applicants feels, well, kinda’ dirty. But is it illegal?
Short Answer: No, as long as you follow certain limits. Here are the limits and how to stay within them.
Legal Risks of Using Facebook to Screen Job Applicants
In a widely cited Microsoft sponsored survey of employers, 70 percent admitted to rejecting an applicant because of something negative they dug up about the person on Facebook. Many argue that an employer’s use of personal information from Facebook to screen a job applicant is highly unethical; but even the most virulent critics will admit that there’s no law expressly forbidding it. Germany just proposed such a law. But here in the U.S., proposed laws like this are not on the radar screen.
But using Facebook for pre-employment screening can still get you into trouble under the “old” laws. There are two legal risks to beware of:
- The methods you use to collect information from Facebook may violate the applicant’s privacy rights; and
- The way you use the information may run afoul of employment discrimination laws.
1. Facebook screening and privacy
Federal laws like the Fair Credit Reporting Act ban employers from conducting personal background checks on employees and job applicants without the individual’s written authorization. Many states, including California, place even more stringent restrictions on employer collection of personal information about job applicants from third parties. It could be argued that comments, photos and other Facebook postings are personal information that can’t be collected without authorization under these laws.
However, there’s a huge loophole: Consent isn’t generally required to collect personal information that’s publicly available. Postings on a social networking site have been consistently recognized as publicly available information by courts, arbitrators and privacy commissions.
Reasonable Expectations of Privacy: Job applicants might also have privacy rights under a collective bargaining agreement or common law, i.e., case law made by judges. To hold you liable for a privacy infraction, job applicants must show they had a “reasonable expectation” of privacy in their Facebook postings. The operable word is “reasonable.” Thus while there may be plenty of Facebook users who assume otherwise, postings on social networks are not private communications. Thus it wouldn’t be reasonable to expect Facebook postings to be kept confidential. However, the job applicant would have a stronger argument to the extent the employer circumvents the host site’s privacy controls to gather the information.
Sally, a recent college grad who has opted to limit her Facebook network to other recent grads, applies for a job with ABC Company. Finding its access to Sally’s network blocked, ABC has an employee pose as a grad so he can “friend” Sally and join her network. ABC uses the information the employee acquires in processing her application. Sally would be in a position to argue that she had a reasonable expectation of privacy.
2. Facebook Screening & Discrimination Laws
The second concern about using Facebook to screen job applicants involves what you do with the information after you collect it. Under EEO laws, it’s illegal to factor a person’s race, sex, religion, family status, disability or age into your hiring decision. Thus, for example, you can’t ask applicants direct questions about their religion or family status (i.e., if they have kids) during interviews or have them attach photos to their applications because it might reveal their race.
The problem with using Facebook as a screening tool is that it enables you to find out all about these personal characteristics that you’re not allowed to consider during the hiring process, e.g., information about the applicant’s race, religion, age, disability, etc.
You may think that nobody will ever know that you accessed the applicant’s Facebook account. But you’d be wrong. Technologically, tracing an employer’s electronic searches is child’s play. And if you do get sued, you can be darned sure that the applicant’s lawyers will come after your search records.
Of course, just because applicants can show that you saw something about them on Facebook that a prospective employer isn’t supposed to see doesn’t mean they can prove you relied on that information in rejecting them. But guess what? They don’t have to. Proving that you went to the trouble to access the information is evidence that it played a role in your decision. And all applicants must show is that you considered the information to prove discrimination.
How to protect yourself
The best way to ensure that your Facebook checks remain within bounds is to adopt a written policy on how such information will be collected and used during the pre-employment process. Such a policy should include:
Your justification for checks: You must have a legitimate, non-discriminatory and compelling reason for using Facebook to screen job applicants. It can’t be a “fishing expedition.” To be justifiable, use of Facebook must yield crucial, directly relevant information that you can’t otherwise obtain.
The sites you check: List the specific websites you check. Each website listed should be selected for its potential to provide access to information that’s directly relevant to the applicant’s qualifications.
The information you gather: Limit your check to information directly relevant to the applicant’s qualifications and list exactly what that information is. Indicate that you will not deliberately seek information about the applicant’s race, religion, disability, etc.
The information gathering methods you use: Limit collection to information that’s publicly available on the site and obey the host site’s use restrictions and applicant’s indicated privacy preferences. Thus, for example, ban “friending” of applicants to gain access to their privacy-protected information.
The candidates you check: To cut discrimination risks, you should conduct Facebook checks only after the applicant has impressed enough to warrant serious consideration for hiring. The purpose of the check then becomes to confirm that the applicant is offer-worthy. Also require the check to be done by a person trained in discrimination law who’s not making the hiring decision. In addition to establishing a consistent procedure, this method insulates the decision-maker from the information that could result in making the hiring decision discriminatory.
The notification methods used: Your policy should require you to notify job applicants that you intend to do background checks on Facebook at the beginning of the pre-employment process. In addition to making it harder for job applicants to later claim that they had reasonable expectations of privacy in their Facebook postings, this disclosure may discourage individuals with something to hide from applying in the first place.
It’s okay to use Facebook to screen job applicants as long as you recognize and take steps to manage the privacy and discrimination risks involved. But the question isn’t simply if you can but whether you should use Facebook this way. Just think about what people post on Facebook. Is any of this information really relevant to the position and the individual’s qualifications to perform it? Only if the answer is “yes,” should you be prepared to incur the liability risks of using Facebook for pre-employment screening.
Glenn S. Demby is an attorney and prize-winning B2B journalist who specializes in explaining the law in plain English and providing how-to solutions to help business professionals overcome their compliance challenges. He works with corporations and not-for-profit organizations, and has contributed as a volunteer contributing articles and seminars on how to write for the editorial division of The Specialized Information Publishers Association (SIPA). Glenn can be reached at 203-354-4532 and at [email protected].