Risky (Recruitment) Business? Potential Risks for Employers in Using Social Network Profiles for Candidate Screening

Today, I’m presenting on Web 2.0, social networking, and legal implications in employment at Dickinson, Mackaman, Tyler, & Hagen’s 2009 Employment Law Client Seminar in West Des Moines. As a portion of my segment, I’ll be going over a number of risks employers face when they use social networking sites as part of their hiring or screening process. Potential risks include:

• Incorrect information or information taken out of context. Information in a person’s online profile or “wall” space on Facebook, for example, isn’t always accurate. Neither are assumptions about that information. Keep in mind users sometimes have no control over content others post to their site. Of course, sarcastic comments or inside jokes could easily be taken out of context and misunderstood.

• Reveals information about a candidates’ protected class. Social network profiles include all kinds of protected information: people often list religious beliefs, age, race, gender, sexual orientation (protected in Iowa!), military status, and so on in profile information, for example. It’s risky for employers to get access to this information they wouldn’t otherwise ask about during the hiring process – and information upon which they can’t base hiring decisions. Once an employer sees this stuff, they can’t “un-see” it! Employers may find themselves having to prove a decision to refuse a candidate wasn’t influenced by the information online.

• Invasion of privacy. Depending on the circumstances, checking online profiles could lead to an invasion of privacy claim under various federal or state laws.

• Off-duty conduct discrimination. Some states have laws prohibiting discrimination based on off-duty conduct. If an employer has employees in states with such laws, it could really limit the employer’s ability to use social networking sites as part of the screening process.

• Fair credit reporting laws. If employers use an outside agency to conduct background checks on candidates, they may need to follow consent and disclosure requirements of fair credit reporting laws. The federal Fair Credit Reporting Act is one such law, and states sometimes have similar statutes.

Of course, some might argue employers have a duty to check public profiles available through social networking sites that are freely accessible to minimize risks of later negligent hiring claims. Employers do have a duty to consider all reasonably available information in making hiring decisions, and failure to check online profiles could arguably support a future negligent hiring claim.

Employers should carefully weigh risks and benefits of incorporating social networking checks into its screening process. If employers plan to use social networks as part of their vetting of candidates, they should consider working with counsel in developing an internal policy to govern the process.