Keep it Legal: Social Media and Hiring

We all know how fast social media in all of its forms are growing. According to Pew Research Center’s Social Media Making it in Business, 77-79% of adults (over age 18) use the Internet, 85% own a cell phone and 46% belong to a social networking site. People are now using the Internet to search for and research jobs. In 2002 Pew Internet’s study, Online Job Hunting: A Pew Internet Project Data Memo, stated that over 52 million Americans looked online for information about jobs. That averages out to 4 million per day and that was in 2002, I’m sure the numbers have grown substantially.

The online job hunting resources include commercial job sites like, job boards as a part of an association’s web site, organizations listing employment opportunities or social networking sites. The Importance of Social Media in Job Search is just one of thousands of articles on job hunting. On the flip side, human resource professionals are seeking ways to leverage social media in hiring, retaining and motivating employees. The Society for Human Resource Management’s web site has 512 hits when searching “social media†and that is only the public side of their site. Michael Specht’s 52 Ideas on Using Social Media Within HR gives a quick look at ways HR professionals are using social media – personal professional development, engaging employees and recruitment. Many articles also discuss the need for a social media policy (see our white paper, Social Media, Risk and Policies for Associations).

However one area that has not gotten a lot of press is the legality of conducting background searches on job applicants. We all know to “Google†ourselves and set up alerts for mentions of our name and business, but can we do the same thing to our applicants? Howard Greenstein wrote for Is it Legal to Use Social Network Data When Hiring? – one of the first writings I have seen on the topic. What can we do with the information since it may tell us things we don’t want to know?

The Civil Rights Act of 1964 (Pub. L 88-352, 78 Stat. 241) first made it illegal for employers with 15 or more employees to discriminate on the basis of color, religion, sex or national original. Other federal anti-discrimination laws added pregnancy, age and disability to the “protected classes.†Plus every state and some municipalities have their own anti-discrimination laws adding other categories to the “protected class†such as sexual orientation, gender identity, and appearance. The state laws often have a lower number of employees’ thresholds so more employers are required to comply.

When you search someone’s name or visit their social networking page, you uncover information you cannot legally ask the applicant – such as their marital status, children, medical issues, gender issues, etc.  But how do you unlearn that the person suffers from bi-polar disorder, is pregnant, marched in the Gay Pride parade or any other information that you cannot legally ask? If you do not hire the person, the onus is on you to prove that the information revealed through your online search did not affect the employment decision. It is always difficult to prove a negative and your association will spend a lot of time responding to the complainant while your Directors & Officers Liability insurance company spends thousands of dollars defending you (assuming you have D&O insurance with Employment Practices Liability).

As Nancy Schess, an attorney with Klein Zelman Rothermal says in the article, the use of social media is an appropriate approach, but you need to do it in an acceptable way. Her advice is to have someone not involved in the employment decision perform the online search for legitimate business reasons. The person can brief you about the applicant’s educational background and business experience but they should not share any “protected information†with you. Additionally, make sure that the managers, supervisors or others involved in the hiring process do not conduct an online search of the job applicants. Not that you need yet another HR policy, but include in your supervisory and managerial training that staff are not to conduct online searches of potential employees. Also share this with your board for when conducting a search for the next chief executive officer or executive director.

(photo credit)


Earl Jones July 20, 2010 at 9:34 am

Awesome! You rock!

Leslie White July 20, 2010 at 2:14 pm

Earl – Thanks, I’m glad you liked it. Leslie

Les Rosen August 4, 2010 at 9:27 am

Actually, there have been a number of people in the background screening industry that has been alerting the recruiting community for some time that the use of social media was just a lawsuit waiting to happen, and that there are a number of practical considerations for recruiters. I have been a speaker at recruiting conferences where I was the only one suggesting that there are numerous legal ramifications, especially for recruiters, and the importance of objective criteria, documented training, and metrics. See for example:

Leslie White August 4, 2010 at 11:58 am

Thank you for the link to your article – a thorough discussion of the issue. Few associations think they can afford a complete background screening for prospective employees so anything we can do to alert them to the issues affecting their own efforts is helpful. Leslie

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