by: Hayes Hunt and Jonathan R. Cavalier
Companies now frequently use social media to vet applicants, with some even going so far as to force applicants to permit company employees to access their various social media sites.
With Facebook expected to hit the 1 billion user mark in August and more than half of Americans using at least one social media platform, the importance of social media in business and everyday life will only increase. Lawyers have no choice but to become familiar with the various social media platforms, the issues these platforms create for their companies, and the pitfalls and advantages they present in management and litigation.
Use of social media as an employee screening tool has become much more prevalent over the past year. Much like a background check, social media can provide a wealth of information about potential hires that typical interviews won’t reveal. For certain jobs, this information can prove highly important, and if performed properly, social media screening can prevent the company from facing a potentially embarrassing situation in the future. So how can employers use social media to effectively (and legally) screen employees?
To effectively screen employees, employers should use social media screening at the final stages of the interview process, and only after an in-person interview has been conducted. Social media can reveal characteristics about job candidates, such as age, sex, race, sexual preference, family status, etc., that would normally be off-limits in a typical interview. The employer must take care to avoid creating a perception that these characteristics are factoring into hiring decisions. In some cases, employers would be well advised to use a third party to perform social media searches and to report anything job-related to the employer while screening any nonrelevant information.
What should the employer be looking for that might bear on the worthiness of a job candidate? For one, the company should consider how the potential employee presents himself or herself to the public. What type of judgment does the candidate show? More importantly, has the candidate revealed information about prior jobs or posted potentially confidential information? Does he or she speak negatively about prior employees or employers? Does he interact with people in a way that makes him look like a sexual harassment suit waiting to happen? All of these factors, and many others, can legitimately be considered by the employer.
Should the employer demand that the interviewee or employee give up his social media passwords or be required to “friend” a supervisor? While such demands are not currently illegal in Pennsylvania, the trend is certainly moving in that direction. Many states are considering laws that would make it illegal to force an employee to allow his or her employer to view his or her private social media pages. Last Wednesday, legislation was introduced in both houses of Congress that would make it illegal for employers to force employees to give up passwords to a wide variety of social media sites.
The better practice is to have clear social media policies that spell out what employees can and cannot do on social media, and advise the employees that if their social media presence reflects poorly on the company or on their job, they can be subject to discipline or termination.
Published in The Legal Intelligencer on May 16, 2012