The Burden of Knowledge – Legal Issues Surrounding Social Media

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As a job seeker, it is important to understand how employers are using social media to recruit and screen new talent.  Over the past 5 years, the number of employers who used social media to recruit new talent went up from 34% to 77% (Segal, 2014).  Interestingly however, fewer employers report using social media to screen new applicants. In part, this decrease can be attributed to legal concerns around Equal Employment Opportunity (EEO) regulations (Segal, 2014).

The primary reason social media puts employers at risk is that online searches often result in access to protected information, such as a candidate’s race, color, religion, sex, sexual orientation, national origin, age, or disability (Segal, 2014; Hazelton & Terhorst, 2015).  As a job seeker, it can be difficult to know if an employer has used protected information to discriminate against you during the hiring process. However, it is important to be aware of how employers should behave so you are informed about appropriate use.  If employers do not follow certain protocols, you may have grounds to question a hiring decision.

Employers should:

  • Not use social media as a screening strategy until the candidate has participated in a face to face interview (Berkowitz, n.d.).
  • Give applicants advance warning that they are reviewing publically available social media and provide clarification about how it will be used in the review process (Berkowitz, n.d.).
  • Document the type of information they are looking for and how it will be reviewed (Segal, 2014; Hazelton & Terhorst, 2015).
  • Review online content consistently across applicants (Berkowitz, n.d.).
  • Never expand interview questions based on information found on social media sites (Berkowitz, n.d.).
  • Clearly describe how social media posts influenced the decision making and retain a screen shot of the specific content (should it be removed or taken down) (Segal, 2014).
  • Allow the candidate to respond to questionable posts (Segal, 2014).
  • Limit the review to information posted by the candidate, not what others have shared about him or her (Segal, 2014).
  • Use a third party (such as an HR professional) to conduct the social media search, so protected information can be screened out (Segal, 2014).

In addition to using social media to screen job candidates, it has also been used to terminate existing employees. Some state laws prohibit employee termination based on off-duty activities including posting to personal social media accounts (Segal, 2014; Park, 2015). Some employers discourage online friending between supervisors and employees to ensure that any disciplinary or termination actions are not compromised with posts about protected categories (SHRM, 2016).  However, prohibiting employees from friending one another on social media may also violate rights to associate (SHRM, 2016).  At a minimum, if employers plan on using information found on social media as grounds for termination, they should develop social media policies that clearly describe company expectations for doing so (Berkowitz, n.d.).

In an era of online recruitment practices, legal complications are bound to arise.  Keeping abreast of the legal interpretations of right to free speech, right to privacy, right to associate, and EEO law in terms of social media use for employment decisions will help employers, employees, and job seekers to effectively and ethically use social media.

References:

Berkowitz, M. (n.d.).  Social media recruiting: Understand the legal guidelines.  Retrieved from Monster.com at: http://hiring.monster.com/hr/hr-best-practices/recruiting-hiring-advice/acquiring-job-candidates/social-media-recruiting-guidelines.aspx

Hazelton, A. & Terhorst, A. (April, 2015).  Legal and ethical considerations for social media hiring practices in the workplace. Retrieved from: http://scholarworks.wmich.edu/cgi/viewcontent.cgi?article=1093&context=hilltopreview

Park, L. (May 14, 2015).  Social media and employment law – are courts catching up?  Retreived from Wolters Kluwer at http://www.employmentlawdaily.com/index.php/2015/05/14/social-media-and-employment-law-are-courts-catching-up/

Segal, J. (2014).  LEGAL TRENDS. Social media use in hiring: Assessing the risks.  Retrieved from the Society of Human Resource Management (SHRM) at https://www.shrm.org/hr-today/news/hr-magazine/pages/0914-social-media-hiring.aspx

Society of Human Resources Management (Jan. 19, 2016). Managing and leveraging workplace use of social media.  Retrieved from: https://www.shrm.org/resourcesandtools/tools-and-samples/toolkits/pages/managingsocialmedia.aspx

 

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