By Randal Cole
For better or for worse, the rise of social media has transformed the way we communicate and engage with each other, the way we share ideas and information, and the way we present ourselves to the world. It seems as if new social media websites are created daily.
Most people are on at least one social networking site, and members of Generation X, Millennials and the most recent Generation Z (iGen), tend to be particularly heavy users: a large and influential demographic of tech-savvy users who understand how to use social media not just to have fun and connect with friends, but to maximize their exposure.
For all the power and potential of social media, there are possible pitfalls as well—particularly where social media activity begins to blur the lines between the personal and the professional. Perhaps inevitably, the social media lens has become increasingly relevant and resonant in the workplace, not only as a tool for marketing, communications and network building, but as a mechanism for evaluation and assessment.
More and more, employers are turning to social media to help vet potential new employees, but this strategy raises some significant legal and ethical questions. Is the information that is posted on social media fair game for employers to access? Do employers have the right to monitor their employees’ use of the internet on computers owned by the company? How about personal devices and social media accounts? Who really owns that information, who is permitted to access it, and how are they allowed to respond to and act on what they discover?
The legalities of using social media for hiring/firing and employee evaluation are complex, and understanding where the lines should be drawn between what is and is not permissible can help employers use social media effectively without exposing themselves to potentially damaging and costly liability.
Employers would be wise to seek the advice of trusted legal counsel—specifically labor and employment law attorneys who understand the considerations and best practices that employers need to keep in the forefront when using social media as a recruiting tool. It is also important to have a working understanding of the basic do’s and don’ts. Employers that are familiar with the legal and regulatory landscape of social media evaluation and that take the time to familiarize themselves with the accepted best practices for accessing and acting on information gleaned from social media will find themselves positioned for success in this rapidly evolving field.
One of the biggest and most important questions to be answered is who should be in charge of reviewing/monitoring prospective employees’ social media activity? Ideally this is a single individual (preferably someone in HR) who acts as a “gatekeeper.” With one person responsible, businesses can have a greater certainty that social media reviews are being performed consistently, with the same standards applied to each case.
While it may seem to make sense on the surface, you most definitely do not want to outsource these reviews. Doing so may put you and your company in violation of the Fair Credit Reporting Act, federal legislation designed to ensure the accuracy, fairness, and privacy of consumer information. Among other restrictions, the Fair Credit Reporting Act requires an employer to secure written informed consent before performing a background check and stipulates that an employee must be notified in writing of a negative finding.
Another important question is who decisionmakers should be looking at in the first place. The answer here is straightforward: either conduct social media research and reviews for all prospective employees or for none. Adopting an all-or-none policy helps eliminate any possible appearance of discrimination.
Even when the motivation for digging into someone’s social media activity may be entirely benign or may be the result of a very practical desire to find specific information, inconsistency leaves companies open to charges of sexism, racial profiling or other types of bias. In a worst case scenario, if a prospective employee’s complaint leads to action from the U.S. Equal Employment Opportunity Commission (EEOC), consistency is a strong defense. To that end, having a policy in writing is important, as well as maintaining detailed interview and hiring records.
So what do you actually look for when conducting a social media review, and what kinds of questions can and should you be asking job applicants? The most important thing to keep in mind is to keep it general and high level.
It is perfectly fine to ask a prospective employee if they have a Twitter or Facebook account, or to inquire about what type of social media platforms they use on a regular basis. It is, however, absolutely illegal (in all 50 states) to ask for someone’s password. Doing so constitutes a violation of the Federal Stored Communications Act, a statute that “addresses voluntary and compelled disclosure of ‘stored wire and electronic communications and transactional records’ held by third-party Internet service providers (ISPs).”
As for what type of information you should be looking for when reviewing an applicant’s social media activity, most of it is common sense. If a prospective employee is engaging in behavior that could be perceived as risky or embarrassing, is posting disparaging things about other people or other companies, or is doing or saying unethical things, those could all be seen as red flags. Racially insensitive or discriminatory language of any kind is obviously a cause for concern.
Some of it is subtle and more nuanced, however. In some cases, companies may want to keep an eye out for behavior that may be perfectly reasonable or permissible in everyday context, but might run counter to company policy. Religious organizations may be extra sensitive to someone who uses excessive amounts of crude language, for example.
Keep in mind, reviewing candidates’ social media activity is not just an exercise in finding reasons not to hire them—it is also an opportunity to discover positive things about them, such as volunteering.
Where can an employer look for social media accounts? Anything in the public domain is fair game, and employers should pay particularly close attention to popular and widely used social media platforms like Twitter, Facebook and Instagram.
The rules are somewhat different for existing employees, specifically with respect to activity they engage in on computers or networks that are owned by the company. The Electronic Communications Privacy Act essentially states that when it comes to employer-owned equipment, employees have no expectation of privacy. Whatever you do on the company computer is fair game. When an employee is using a personal computer, however, employer review options are limited to whatever is available through the public domain.
As for the timing of when to conduct social media reviews of prospective employees, there is really only one important guideline: never do so before you interview the candidate. You do not want to taint your impression of individuals before meeting and interviewing them face to face, and you could even open yourself to accusations of bias. If questions do arise during a subsequent post-interview social media review, it is perfectly reasonable to contact the candidate or schedule a follow-up interview to discuss it.
As for determining when to consult legal counsel in the event that you have questions or concerns about how to proceed, the general rule of thumb is that if you think you may need legal advice, it is almost certainly a sign that you should seek legal advice. Here again, having a thoughtful and well-articulated policy (that is outlined both in hiring documentation and in your company handbook) is one of the best ways to ensure that all parties are clear on policy and practice guidelines and to avoid potential issues.
Arguably, one of the most important things to emphasize with respect to social media reviews as a tool for hiring and firing: do not abandon your established standards or practices with respect to employee evaluation. Social media should be a supplemental tool, not a replacement. Think of it as a way to enhance your current policies and practices.
Decision-makers and HR professionals should also be cautious about drawing overbroad conclusions that can lead to knee-jerk decisions. If questions or concerns arise with respect to social media activity, it is almost always a good idea to go directly to the source and ask the individual to explain, elaborate or contextualize the images or information that raise concerns for the employer. In some cases, a compromising picture or offensive post may represent a rare lapse in judgment or may have some other reasonable explanation—and it is also possible that the information might not even be accurate. Cases of mistaken identity, or examples where people have had their accounts hacked and consequently had others posting information on their behalf are rare, but they do happen. Doing your due diligence to follow up is not only a good way to avoid making a mistake that could cost you a great employee, but also good insurance in the event the issue becomes contentious and escalates to the point of legal action.
As in so many areas of the law, the use of social media for professional evaluation is still evolving—there are bright lines, but also some gray areas that should be considered. The technology (and its role in society and in the workplace) is changing rapidly, and the legal guidelines surrounding social media cannot always keep up with this rapid pace of change. As social media becomes an increasingly prominent feature on the business landscape, the lines between personal and professional become fuzzier and the potential for misunderstandings and missteps becomes more pronounced. In that context, the need for employers to understand and adhere to best practices is arguably more important than ever.