Legal Implications of
Social Media and the Hiring Process
October 17, 2012
Social media has become one of the most important tools in business practices. Companies can advertise their services and products for nothing or next to nothing, network with other businesses, generate new business, connect with their customers, and provide a valuable research tool. It has changed the face of business as we know it. With this wonderful innovation comes responsibility. Employers and employees alike must face new rules and laws associated with their social media practices. One such practice that has become important in the business world is the use of social media during the hiring process. Some companies even go so far as to request job applicants for their username and passwords for such sites such as Facebook, MySpace, and Twitter. Where do the rights of employers and the rights of employees fit into this new high tech world? The legal system faces new challenges every day regarding this relatively young business quandary. Where should the lines of privacy be drawn? How much social media information should an employer be permitted to use during the screening process for hiring a new employee? It has just recently come to the media’s attention that some employers ask their job applicants for their Facebook login information and password. However, the reality is that employers have been using social media to investigate these applicants for years. In 2011, Reppler, a social media monitoring service, conducted a survey of 300 hiring professionals to learn if, when, and how they are using social media to screen job applicants. The study found that 91% of recruiters or hiring managers use social networking sites to screen prospective employees. Out of these recruiters and hiring managers, 69% revealed that they have denied employment to a job applicant due to something they found on an applicant’s social networking site (1). Employers, however, should take caution when using the information they find to make a decision whether to hire an applicant or throw their application in the trash. It would seem that technology is outpacing the law in this area; however, employers should very seriously review the information they find and be sure that it does not lead to a liability under the Fair Credit Reporting Act, or some other state or federal employment discrimination laws. The Fair Credit Reporting Act (FCRA) states that an employer must provide a disclosure that a consumer report or background check will be performed to their job applicants, and should obtain signed authorization by the applicant to proceed with this research. It is also the duty of the company to provide notice to the job applicant that they will take adverse action to not hire them before the company actually takes that action, and provide a post-adverse action notice (2). It is interesting to note that these FCRA requirements do not apply to employers who perform their own background checks without using a consumer-reporting agency to obtain the information. Human resources hiring managers that perform a social media search on a job applicant are not bound to these FCRA regulations to provide disclosure and gain consent from the applicant. This is where it gets tricky! Although a hiring manager may not have to adhere to the FCRA regulations, they may still be confronted with other state and federal laws regarding employment discrimination and privacy. In the past, employers have been very careful to not invade employee privacy, base any employment decisions on protected characteristics, or ask unlawful questions during the interview process. In the past few years though, employers have been using social media to screen applicants on a regular basis, whether formally or informally. By performing these pre-employment research screenings on job applicants using social media profiles, employers are...