Alyzae Feroze, MPS: HR and Employment Relations
These days the job application and recruiting process is vastly different to what it was 20 years go. Social media sites such as LinkedIn, Facebook, and Twitter are proving to be an effective tool in the recruiting process, allowing employers to cast wide net and discover the best talent to fill open positions. With this luxury and convenience also comes great danger and risk. Social media proliferation has made personal information about individuals easily available at anyone’s fingertips. As a result, it has complicated the hiring process for both applicants and those seeking them. This article aims to tackle the current definition of applicant as defined by the EEOC, privacy considerations in reference checks, and suggestions for organizations and applicants to minimize their risk in this era of open access to information.
In the United States the Equal Employment Opportunity Commission (EEOC) is the government agency that enforces federal employment discrimination law. According to the EEOC, an “applicant” is defined by the following three points: “first, the employer has acted to fill a particular position; second, the individual has followed the employer’s standard procedures for submitting applicants; third, the individual has indicated an interest in the particular position.” (EEOC) With that in mind we must consider social media tools such as LinkedIn. For example, if a recruiter reaches out to a potential candidate through a LinkedIn message, this scenario does not qualify the person they reached out to as an applicant, even if the response to the message positive. The only way they would be considered an applicant is if they go through the formal and standard application procedure for submitting applications. For example, the recruiter would communicate where one can submit their resume and other information on the companies website.
Reference checking is an evaluation of applicants past performance and a way for employers to verify the information that an applicant has stated on their resume. Reference checking can be used to verify the accuracy of information provided, predict future performance, and uncover background information. These days employers are making use of social media sites such as Facebook and LinkedIn as a means of identifying good candidates; however, incorrect use of this information could lead to discriminatory practices because content regarding an individuals age, religion, race, gender, and even ethnicity can be easily determined by viewing social media profiles. For example, a court case in 2010 had to do with a prospective job candidate that was passed over because allegedly, details regarding his religion were uncovered on a social media profile. (Gaskell v. Univ. of Kentucky) In this case the university agreed to pay Gaskell $125,000 as a settlement. The University claimed to settle this in order to avoid a lengthy trial and they maintain the stance that they committed no crime, and that they have sound hiring practices that do not discriminate.
Although viewing social media profiles is not illegal for employers, there are some privacy considerations: “Employers using social media without authorization may subject themselves to invasion of privacy claims. These claims hinge on an individual's reasonable expectation of privacy.” (Bally, 2014) Therefore, employers can be exposed to invasion of privacy claims in court, especially if they break into protected social media profiles that are private. In many states it is now illegal for employers to ask applicants for their social media passwords. With that said, it is also important to note that laws regarding social media and employment are still developing because the concept is relatively new. “Using social media in the hiring process implicates a number of privacy law concerns. These concerns are primarily associated with unauthorized access, hacking or deceptive practices to gain access to protected content” (Bally, 2014) In terms of privacy, the line is usually drawn at non-public internet/social media sites where one can only attain information through authorization and permission. “However, it is critically important to note that just because information in the public domain is fair game for employers to look at, it does not mean that employers can lawfully use that information in the hiring process.” (Quast, 2012)
In terms of suggestions for the employer, the first thing they should do is come up with some sort of social media policy after consulting with an attorney who specializes in this area of knowledge. This will help the organization figure out ways to avoid discriminatory practices and protect itself from potential lawsuits. Another strategy is to only view social media profiles after having a face-to-face interview with the potential candidate. This way, the employer is unlikely to be accused of relying on protected characteristics in the decision making process. Organizations can also give candidates a “heads up” and inform them that they will be reviewing any publically posted social media accounts. This way the candidate is well aware of what they feel comfortable with the employer seeing.
Suggestions for the applicant include making sure there is a clear and protected distinction between all personal and public social media accounts. This means regularly checking up on all public social media profiles to make sure they are updated and have no questionable content. It is also smart to join social media groups that are relevant to the jobs they are seeking, make connections with people in a similar line of work, and give a professional appearance to your profile by writing and sharing industry specific posts.
In conclusion, it is essential that employers and applicants not rely on social media too heavily; there are many more features to a candidate that may not be discerned solely through an internet search. Likewise, there is variety of other effective means for recruiting talent as well. Recruiting broadly ensures that employers are not just interested in particular groups and are not bias towards specific groups over others. With that said, it is important for employers and employees to understand the meaning of an “applicant,” take privacy into consideration, and keep in mind useful tips to help minimize risk associated with social media accounts.
1. Bally, K. (2014, May 29). Legal Resources. Retrieved September 13, 2015, from http://www.acc.com/legalresources/publications/topten/ttcwusmithp.cfm
2. Questions and Answers: Definition of "Job Applicant" for Internet and Related Electronic Technologies. (n.d.). Retrieved September 13, 2015, from http://www.eeoc.gov/policy/docs/qanda-ugesp.html
3. Settlement in the Gaskell case | NCSE. (2011, January 18). Retrieved September 13, 2015, from http://ncse.com/news/2011/01/settlement-gaskell-case-006427
4. Quast, L. (2012, May 28). Social Media, Passwords, and the Hiring Process: Privacy and Other Legal Rights. Retrieved September 10, 2015, from http://www.forbes.com/sites/lisaquast/2012/05/28/social-media-passwords-and-the-hiring-process-privacy-and-other-legal-rights/
5. Berkowitz, M. (n.d.). Social Media Recruiting: Understand the Legal Guidelines | Monster.com. Retrieved September 13, 2015, from http://hiring.monster.com/hr/hr-best-practices/recruiting-hiring-advice/acquiring-job-candidates/social-media-recruiting-guidelines.aspx