Social media has become a powerful tool for recruitment and hiring, but there are a number of risks that may be lurking behind the wealth of information available about prospective candidates. Employers who rely on social media to attract and screen candidates may be exposing themselves to significant legal risks including claims under Title VII of the 1964 Civil Rights Act, The Americans with Disabilities Act, The Age Discrimination in Employment Act and/or similar state anti-discrimination laws.
Use of Social Media for Hiring Is on the Rise
The Society for Human Resource Management (SHRM) reports that employers are actively using social media sites as a tool to recruit 
job candidates. A SHRM member survey released in April 2013 found that 77% of employers regularly use social media for recruiting: to locate passive job candidates, search for active candidates, and create interest for hiring by posting information about their organizations. LinkedIn has become the most prevalent tool, with 94% of employers using it as a hiring or screening tool, while 58% use Facebook, and 42% use Twitter.
Beware: You Can’t Unknow What You Know
While sites such as LinkedIn are a powerful tool that employers are utilizing, there are some dangers that come with the use of social media sites. What is posted on those sites could disclose protected class information, and employers could be accused of having discriminatory hiring practices. Information about a candidate’s ethnicity, religion, age, marital status and sexual orientation are often publicly available on social media profiles such as Facebook. For example, if the employer looks up a candidate on Facebook and sees a picture of the candidate with a “Happy 40th Birthday” banner in the background, the employer now knows the candidate’s age – or maybe the employer finds out the candidate is pregnant based on an announcement on Facebook to her family and friends. Now the employer knows information about the job candidate that could be construed as recruitment bias based on age, gender, ethnicity, etc. It is difficult for employers to prove that those details did not play a role in a hiring decision.
Also, using social media exclusively for recruiting might expose an employer to claims that the employer’s recruitment and hiring process barred members of a protected class from being able to be considered for employment. For example, studies show that social media sites have lower percentages of Latino and African-American users, and may not represent the complete job applicant pool.
Best Practices for Employers Using Social Media for Recruiting and Hiring
Screening applicants through social media must be weighed carefully against privacy and discrimination issues that can pose dangers. Here are a few pointers and best practices for employers:
- Only HR professionals should use social media for screening job applicants.
- Stick to social media sites that are meant for professional use such as LinkedIn and avoid sites like Facebook that are predominantly for personal use and which will have much more personal information available to the employer.
- Employers should only request information that is relevant to the position.
- Have someone other than the employment decision-maker conduct the employee screening through social media.
- Social media checks should be conducted in concert with background checks.
- Background screening companies that use social media sites are subject to the provisions of the Fair Credit Reporting Act, under which applicants must give permission for pre-employment investigations.
- Social media screenings should examine only “public profile” information. Employers are prohibited from requesting an applicant’s social media account passwords.
- Employers should develop policies for determining when social media screenings are appropriate and perform such checks on a consistent basis
- Employers should document findings in case an applicant later asserts discrimination.
- Social media should only be one part of the recruiting process and should be used in concert with background checks and reference checks.