One of the more common questions we get from employers is whether they can search the internet to discover information about job applicants prior to that applicant’s interview. The easy answer is yes. However, as with most legal issues, there are always caveats to the simple answers.
In a June 2009 survey of 2,600 companies performed by CareerBuilder.com, 45% of employers stated that they used social media to pre-screen job applicants. 1 Of the employers that said they pre-screened applicants through social media, 35% admitted that they reviewed content on social media sites which caused them to disregard a job applicant for employment. Examples of social media content that employers’ admitted will influence them to take a job applicant off of the “potential hire” list include:
- Posting provocative or inappropriate photographs or information (53%)
- Posting images that showed them drinking alcohol or using illicit drugs (44%)
- Making negative comments about their previous employer, coworkers, or clients (35%)
- Demonstrating poor communication skills (29%)
- Posting discriminatory comments (26%)
- Lying about their qualifications or accomplishments (24%)
- Sharing confidential information concerning a previous employer (20%).
Employers also claimed to disregard candidates for using an emoticon such as a smiley face (14%) or text language such as LOL (laugh out loud) in an email or on a job application. 2
Under Title VII of the Civil Rights Act and the Texas Labor Code, it is not illegal for an employer to learn the race, gender, or ethnicity of applicants through information that is publicly displayed in social media.3 Likewise, it is not illegal under the ADA to learn or suspect that an individual has a disability through public information in social media.4 What leads to trouble is how the employer uses such information.
The thing that employers must remember is that you cannot “unsee” what you have discovered in social media. Often times, the information you garner about a job applicant does not create any legal issues. However, knowledge that an individual is within a protected class (be it based on race, religion, or disability) could increase the risk of a discrimination claim if that individual is not hired. It will basically place an employer in a situation where it must provide a non-discriminatory reason as to why a certain individual was not hired. It is very easy to discover such information from a quick review of a Facebook or MySpace page. The applicant’s profile picture can often give away race, ethnicity, and disabilities. In addition, the applicant’s profile may also give religious information and the applicant’s date of birth (bringing age discrimination into the mix as well).
There is an even greater risk for employers who allow and/or request video resumes from applicants. When video resumes are used, there is often no doubt that the employer will gain certain information about applicants that could be brought up in a discrimination claim.
If you are an employer who is subject to Department of Labor reporting requirements or Affirmative Action requirements, you may have to save copies of any social media used in the employment application process for at least one year. There are very specific rules about this issue, and it is best to consult your attorney about these issues.
When employers choose to use social media searches and/or video resumes, it is important to properly train the hiring officials and human resources staff about the appropriate responses when factors such as gender, race, ethnicity, religion, or disability are disclosed during recruitment. Clearly, the number one focus should be on the applicant’s qualifications for the job. Employers should generally review social media and/or video resumes only after cutting down the list of applicants based on minimum qualification requirements. If the employer then chooses to review social media and/or video resumes, the employer must be prepared to present non-discriminatory information that was used in determining the person selected for the open position.
3 42 U.S.C. § 2000e-2 et seq.
4 42 U.S.C. § 12101 et seq.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.