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Should Employers Check Social Media Pages of Job Applicants?

Posted by Tom Jones on Apr 24, 2012 1:25:00 PM

Walk across any college campus this time of year and you’ll hear the whispers among small groups of seniors camped in the career placement office.

SocialMedia“Dude, you know employers check your Facebook page.”

Cue the sound of frenzied thumbs on smart phones as young job seekers erase evidence of their dance moves at the recent fraternity blowout. National surveys indicate that approximately half of employers use social networks to check out job applicants and that one-third of the companies that do so have rejected a candidate based on what they found there.

But the reality is that employers have nuanced and divergent views about using social media to gain intelligence about job applicants. Opinions are just as mixed on the question of monitoring use of social media by existing employees, an issue exploded this week then it was learned that one of the Secret Service agents involved in the prostitution scandal had previously posted leering comments on his Facebook page about former Vice Presidential candidate Sarah Palin.

Employers may be reticent about scanning social media in part because they know such actions carry significant legal pitfalls. Trolling Facebook or LinkedIn or Twitter for information may invite accusations of violating the Massachusetts privacy law or using a candidate’s protected class membership as a basis not to hire.

Companies that do review the social media sites of job applicants look for a variety of information:

  • Time spent during work on social media;
  • Negative comments about past or current employers or bosses;
  • Prior lawsuits against an employer; • Frequency or duration of layoffs; and
  • Political or other organization affiliations.

Employers may also review the on-line activities of current employee for evidence of company policy violations such as:

  • Posting confidential information;
  • Posting during work hours;
  • Boasting of inappropriate behavior at work such as drinking or romantic activities; or
  • Information regarding union sympathies.

The problem is that employer’s search may also uncover protected information such as:

  • Religious affiliation;
  • Age, race, disability;
  • Worker’s compensation case;
  • Sexual orientation;
  • Concerted protected activity under the National Labor Relations Act; or
  • Private health information.

If an employer learns any of this protected information, it will be extremely difficult to prove that information did not influence the decision not to hire an otherwise qualified candidate. Social media surfing opens the door for litigation from unsuccessful applicants whose Facebook profile may show them pictured in a wheelchair, provide their age, or indicate that they “like” the page of a gay advocacy group.

Apart from legal risks, there are workplace morale issues such as concerns about a nanny state type workplace that may harm employee retention and a company’s on-line reputation.

Legislatures across the country, most recently in Maryland, are already taking action to ban or limit social media reviews by employers. In Massachusetts, Springfield state Representative Cheryl Coakley-Rivera, House Chair of the legislature's Labor and Workforce Development Committee, recently filed a bill that would make it unlawful for employers to ask an employee or job applicant for the password to his or her social media accounts.

Drawing boundaries around use of social media by existing employees remains an equally vexing issue for employers. On one hand, can the U.S. Secret Service tolerate posts about a public figure it is sworn to protect? On the other hand, the National Labor Relations Board issued a decision last year that cited a non-profit organization in Buffalo for unlawfully discharging five employees after they took to Facebook to criticize working conditions, including work load and staffing issues.

The issues remain problematic as the law struggles to keep pace with technology. We’re interested to hear your opinions.

Topics: Employment Law, Human Resources

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