Alyzae Feroze, MPS: HR and Employment Relations
03/29/2016
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.
References:
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
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