The remarkable growth of social media has changed how the world communicates. In the business sector, an increasing number of companies are using social media for recruiting, employee engagement, external communications, learning applications, knowledge sharing, video instruction, branding – and the list goes on. While social media tools such as Facebook, Twitter, YouTube, and LinkedIn have vastly expanded communication avenues for companies, it is important to apply thoughtful consideration when using social media in the employment decision making process.
Social Media and Recruitment/Hiring
Social networks are a popular means for Recruiters to screen candidates in the employment process. Currently, there is a lack of legislation and case law to offer strict guidance in this area. Nonetheless, Recruiters need to exercise caution when using social networking tools in the recruiting and hiring process.
When accessing a candidate’s social media profile, you often gain access to information in protected categories such as race, age, ethnicity, religious affiliations, and disabilities. By law, such information must be ignored in making hiring decisions. Because of the abundance of information on social media profiles, access to this type of information opens the door for potential discrimination claims.
Fair Credit Reporting Act
The FCRA requires that employers and background screening agencies follow strict rules when using information gathered from pre-employment checks. If any of the information gathered by third party vendors via social media sites adversely affects the hiring of an applicant, the screening company may have to meet consumer dispute obligations and refute the complaint with proof of accurate information. This could present unique challenges given that applicants may change the content of the information on their social media profiles at any time.
The potential for negligent hiring claims may increase with the discovery of information gathered from social media profiles during the hiring process. If questionable information is uncovered through an employee’s social network page, and is ignored, the employer may be held liable for negligent hiring claims if the employee were to later engage in harmful acts.
Social Media and Firing
Because of the increasing popularity of companies using social media to make employment decisions, the National Labor Relations Board (NLRB) has taken an active role in shaping the legality of employee terminations based on information obtained through social media.
Section 7 of the National Labor Relations Act (NLRA) allows an employee to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” In other words, employees are allowed to use social media to initiate group action. Employers are prohibited from restraining these rights, regardless of union presence. Conversely, personal grievances not aimed to induce group action, would not be considered concerted activities. When considering whether or not to fire an employee based on content from their social media profile, make sure to consider Section 7 and seek legal counsel.
Corporate Social Media Policy
The NLRB also offers guidance with regard to corporate social media policy language. The key is to steer clear from an overly broad policy. It is recommended that companies seek review by legal counsel before implementing corporate social media use policies.
It has become increasingly popular for employer’s to ask employee’s to provide their passwords to social media websites. Many candidates and employees find this to be an invasion of privacy. These types of requests could negatively affect public perceptions of your company. Furthermore, a federal bill, the Social Networking Online Protection Act (SNOPA), has been introduced that would prohibit employers from requiring any type of access to online content from applicants and current employees. While only a few states have passed similar types of legislation, the passing of this federal statute would protect employees residing in all states.
Should my company use social media to make employment decisions?
Although legal risks exist with using social media as an employment decision making tool, there are significant advantages to consider. Advantages include open communication, wider networks for Recruiters, widening of business contacts, corporate advertising, etc. Due to the potential for significant legal consequences, companies should be sure to weigh the pros and cons, and consider implementing clearly defined policies, prior to making their decision on including social media content in recruiting, hiring, and firing decisions.