Jonathan T. Hyman, Esq.
Kohrman Jackson & Krantz P.L.L.
Would you believe that an astonishing 91 percent of employers use social media to aid in their decisions of who, and who not, to hire? Indeed, there exists myriad information an employer can learn about a prospective employee from information that is publicly available via social media and other websites. For example, an employer can learn that a candidate lied about his or her qualifications, posted inappropriate comments, trashed a former employer, divulges corporate confidential information, or demonstrates poor communications skills, any one of which could legitimately disqualify a candidate from further consideration. Conversely, an employer can discover that a candidate is creative, demonstrates solid communication skills, received awards or accolades, or is well regarded or recommended by his or her peers.
Despite the legitimate information an employer can discover, these informal background checks are subject to much debate. For one, there is a justified fear that information on the Internet is unreliable and unverifiable. Yet, there exists a deeper problem with employers “willy-nilly” performing Internet searches on job applicants—a genuine risk that such a search will disclose protected information such as age, sex, race, religion, or medical information.
Consider the following example. Jane Doe submits a job application to ABC Corp. The hiring manager types her name into the Facebook search bar. What happens if the search reveals that Ms. Doe belongs to a breast-cancer-survivor group? If ABC declines to interview Ms. Doe, or hires another candidate, it is opening itself up to a claim that it failed to hire her because it regarded her as disabled or because of her genetic information. Now the company is placed in the unenviable position of having to defend its decision not to hire Ms. Doe despite its discovery of her medical information.
Even worse, some are reporting on the apparent trend of employers requiring job applicants to turn over their Facebook passwords as part of the hiring process. Media coverage of this issue has been so thick and the outrage so great that United States Senators are calling for action to outlaw this supposed practice. Maryland became first state that has banned this practice. Illinois and California have followed suit. Many others (Ohio included) are considering similar legislative prohibitions. Indeed, Facebook itself officially weighed in on this issue via blog post by its Chief Privacy Officer:
“If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends…. That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password. We don’t think employers should be asking prospective employees to provide their passwords….”
If you believe all of this coverage, you would think that this practice is rampant. In reality, I would be surprised if one-percent of all employers have even considered asking a job applicant for access to his or her Facebook account, let alone carried on the thought by making it a hiring requirement. Simply, this problem does not need fixing.
These issues raise another, more fundamental, question—what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door with no sense of personal space or privacy? Or do you value transparency? Do you want HR practices that engender honesty and openness, and recognize that employees are entitled to a life outside of work?
Despite all of these risks, Internet searches on job candidates hold real value for employers. Here are some tips with certain built-in protections that employers may follow:
- Consult with your employment attorney to develop policies, procedures, and guidelines for the gathering and use of Internet-based information without conflicting with discrimination and other laws.
- Print a clear disclaimer on the job application that you may conduct an Internet search, including sites such as Facebook, LinkedIn, and Twitter, and general searches using search engines such as Google and Bing.
- Only conduct the search after you have made the candidate a conditional job offer.
- Consider using a third party to do the searching, with instructions that any sensitive, protected, or EEO information not be disclosed back to you. This third party can either be a trained employee insulated from the hiring process, or an outside vendor specializing in these types of background searches.
- Do not limit yourself to Internet searches as the only form of background screening. Use this information as part of a larger, more comprehensive background-screening program.
Following these simple steps will enable you to search for useful information on candidates, while limiting your risk.
Jonathan Hyman, a partner at Cleveland’s Kohrman Jackson & Krantz, provides proactive and results-driven solutions to employers’ workforce problems. Hyman concentrates in the representation of companies in employment disputes. He is the author of the nationally recognized and award winning Ohio Employer’s Law Blog (www.ohioemployerlawblog.com), which the ABA Journal nominated as one of the top 100 legal blogs for 2010 and 2011, and which LexisNexis named as one of the top 25 Labor & Employment Blogs for 2011. He has also shared his experience as an early adopter of social media in his book: Think Before You Click: Strategies for Managing Social Media in the Workplace. Hyman is also a Super Lawyers Ohio Rising Star in Employment Law five out of the last six years. For further information or questions, contact Hyman directly at jth@kjk.com or by phone at 216.408.4455.
