Socially (un)acceptable hiring practices
As social media platforms like Facebook, LinkedIn and Twitter, and even services requiring accounts like YouTube and Flickr, gain more users, they gain more importance too. And, naturally, the use is spreading from the personal to the professional world.
Social media offers employers another option to screen candidates for hire, but is it a legal one?
“The technology always evolves faster than the law,” said Joel Klarreich, a staffing industry lawyer at Tannenbaum Helpern Syracuse and Hirschtritt L.L.P. in New York City.
When the fax machine debuted there was uncertainty about whether a fax signature was valid. Later, questions arose on email signatures and employers developed Internet policies. The need for a consistent social media policy is no different, Klarreich said.
“We see over time that it always takes time and a couple of cases that get publicized” to push this development, he said, and larger companies, fearful of lawsuits, have already adopted policies.
It”™s not just for the employee, but the employer too, since the problem with social media “is not the use of it, but the unregulated use of it,” said Klarreich.
“Companies must outline what information obtained through social media hiring managers can or cannot use in screening or hiring staff,” said Edgemont resident Ron Herzog, CEO of FPC National, a national executive search firm.
For one, he said, “You don”™t want to eliminate somebody because they didn”™t fact-check information properly and there”™s so many times you can find the same name online and it”™s not really the same person.” He cited as an example a company that ran into legal issues with an online background check and made assumptions of a Westchester plumber who shared the same name as a Westchester electrician.
The second issue is discrimination.
“There are things you can see that you may not consider in determining whether to employ a candidate,” said Klarreich.
“You can”™t ask a candidate, ”˜What”™s your religion?”™ Now, when you use social media as part of the employment process, you”™re putting yourself in a position where you”™re obtaining information that you should not have as part of the employment process. And you can”™t erase these things from your mind.”
Red flags could be photos revealing a pregnant woman, racial slurs on wall posts or illicit substances, and even on LinkedIn, a professional networking site, headshots or dates revealing age can hurt a candidate.
“You want your social media profiles to work for you, not against you, in the hiring process,” said Kris Ruby, founder and CEO of Mount Kisco-based Ruby Media Group, a public relations, personal branding and social media agency.
Ruby said using social media in screening is “definitely becoming more acceptable” and “with Facebook”™s new Timeline rolling out, this is going to become a critical part of the hiring process.” Timeline will categorize online life and all former posts, like a scrapbook. The danger is that for “younger candidates who have been on Facebook for five-plus years, college posts they thought were hidden forever will now reappear and can put a major wrench in the hiring process if a potential employer sees these,” she said.
Yes, but should employers hold this content against prospective employees? A hiring manager using personal information and protected class factors from social networking sites “as a basis in making the hiring decision, could potentially be a claim for disparate treatment in refusing to hire the applicant” said Marc Sheridan, an attorney at Markis & Sheridan L.L.P. in Mount Kisco.
Some employers use third-party sources to screen candidates and avoid discrimination claims. Yet still, “There are pitfalls in doing so under the Fair Credit Reporting Act and the New York Corrections Law regarding criminal background check(s),” said Sheridan. “Further, if an employer and/or third-party conditions employment based on providing password and login information, it runs the risk of forcing the applicant to possibly violate the social media site”™s policy and face a lawsuit from the social media provider under the Stored Communications Act,” he said.
“If you are going to use social media for hiring purposes, make sure the hiring decision is based on the criteria you are looking for.”
Remember to keep the factors relevant to the job and, Sheridan added, “Document to demonstrate a legitimate, non-discriminatory reason for the non-hiring decision.”
From a policy standpoint, there are kinks to work out alongside growing acceptance. According to a June 2009 survey by Career Builder of 2,600 hiring mangers, some 45 percent screened potential applicants by accessing social media sites.
“I do believe this manner of screening is here to stay,” Ruby said.
What”™s the law?
Marc Sheridan, an attorney at Markis & Sheridan L.L.P. in Mount Kisco, offered the following advice:
Federal and state laws protect against discriminatory hiring practices when screening a potential candidate regarding race, age, predisposing genetic characteristics national origin, religion, gender, disability, pregnancy and veteran status. The New York State Human Rights Law has additional protection against discrimination based on creed, sexual orientation, marital status, criminal conviction and domestic violence status.
This is not a risk for only large employers. While the exposure for discriminatory hiring claims is size-determinative under federal law (e.g., there is a cap on the total compensatory and punitive damage award of $300,000) New York employers with four or more employees are subject to unlimited compensatory damage awards and a statutory civil penalty. Punitive damages are not allowed under the state”™s Human Rights Law. New York City employers have an added risk of unlimited punitive damages under the New York City Administrative Code. Thus, a New York employer, small or large, could be subject to a hefty fine for improper screening.