Over the past few years, social media has exploded from an adolescent past time into a worldwide phenomenon. In less than a decade social media has infiltrated every aspect of our lives, changing the way live, how we communicate, and how we interact with one another not just in our personal lives but in the work place as well. With just a few clicks of the mouse, we can share our thoughts and opinions, organize events and parties, and upload photos of ourselves and our loved ones for the whole world too see. The explosion of social media networking technologies represents tremendous opportunities for employers but they also contain potential legal pitfalls (Moore, 2011). “It is important for employers and their counsel to understand the benefits, disadvantages and legal issues that can arise when using social media (Moore, 2011)” during pre-employment inquiries, throughout the period of employment and after separation from the employment.
A large part of finding a job or finding a suitable candidate for a job is often based on networking – a friend of a friend who has heard about a highly qualified individual who is looking for a job. Social networks would seem to be the ideal platform for employers to find qualified candidates for jobs. Since many social networking sites are public, employers may be able to find more information about an applicant than what can be garnered from their résumé. Employees in sales, public relations, and customer service functions as representatives for the companies they work for and social media networks can help employers’ pre-screen potential employees to make sure they won’t embarrass the company. “A well-crafted online persona can serve as an asset, acting as a kind of extended resume (Lee, 2010)”.
However, if employers are going to use social medial to prescreen their potential candidates, they need to be aware of the potential pitfalls. The first is that, employers may face liability under federal, state, and local law for using any information learned from social media about an applicants’ protected class status –race, age, disability, religion, sexual-orientation, etc. – in a hiring decision (Lype, 2011). Some of these laws include but are not limited to the Civil Rights act of 1964 as amended in 1978 and 1991, the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1991. People post highly personal information about themselves on Facebook and other social media sites without thinking twice. Religion, sexual orientation, race, relationship status and other personal issues are all part and parcel of the Facebook profile. Employers could be sued for discrimination and it may be difficult for the employer to prove that it only viewed the information but did not use it to make its hiring decision.
Another potential pitfall of using social media to screen applicants is that employers could be collecting inaccurate information (Lype, 2011). Since few social networking sites require verification, someone with a grudge against an applicant might set up a profile designed to viciously defame him. Without a way to verify that the applicant is the creator of the profile, prospective employers might end up making decisions based on slanderous information. Also, it is important to remember that people can use the anonymity of the Internet to portray themselves as they want to be seen rather than as they really are. Hiring managers viewing and collecting information from social media sites could be making judgments out of context (Lype, 2011).
There are various ways an employer can minimize the risks of falling into the aforementioned pitfalls. One way is to ask the applicant for their permission to do a search after extending a conditional job offer (Lype, 2011). Another way to minimize the risks is to have a neutral party, such as an employee in a non-decision making role, conduct the social media search with...
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