Social Media Under Fire as an Employment Screening Tool

California has just joined Illinois and Maryland in putting an important limitation on employers. Based on this regulation, employers are prohibited from requiring applicants and employees to allow them access to social media sites where, presumably, the employers might find information that would affect employment decisions. Although the legal landscape is evolving, employers are still able to gain certain insights based on an individual’s social media postings, however, caution is advised.

Background: In the early days (not so long ago) of social media sites, members/users frequently posted potentially embarrassing photos and indiscreet or insensitive statements that could torpedo their — or their friends’ — employment prospects. After the hazards of such behavior became more evident, most social site denizens got smart and raised their security settings, and began posting with greater discretion.

Yet social media and other online venues remain a potential trove of insights on the people who may work for you and, as employees, represent your company to the public. Thanks to social media, all employees might be de facto ambassadors for your organization, even if their jobs do not involve direct interaction with the public. What are your options?

Employers that have been most aggressive in social media sleuthing thus far have tended to be in heavily regulated fields like financial services and healthcare. That’s because employers in such industries may be most at risk if employees are found to be acting inappropriately in cyberspace.

Searching for Inappropriate Behavior

In general, however, employers in all industries have good reason to be on the look-out for evidence of inappropriate behavior that could create a liability, or indicate the candidate would not fit in with the organization’s culture. But that doesn’t mean employers can demand access to applicants’ or employees’ social media accounts.

The California law, signed by Governor Jerry Brown on September 27, may set the stage for states elsewhere. At least ten others are already considering such legislation, and two U.S. Senators have asked the Equal Employment Opportunity Commission (EEOC) and the Justice Department to evaluate the legality of employers’ requesting social network passwords.

Under the new California law, employers are prohibited from requiring or requesting employees or job applicants to:

• Disclose a username or password for personal social media;
• Access their accounts in the presence of employers; or

• Divulge any personal social media.

In addition, the law prohibits employers from disciplining or retaliating against employees or applicants for refusing access to their social media accounts.

“Social media” is defined broadly under the new law. In addition to basic social networking sites, “social media” includes “videos, still photographs, blogs, video blogs, podcasts, instant and text messages, e-mail, online services or accounts, or Internet website profiles or locations.”

California employers are allowed to demand access to employees’ social networking sites, however, if the request pertains to a probe of employee misconduct or illegal activity, or if needed to access an electronic device provided by the employer.

A Possible Safeguard for Employers

There may be a silver lining to restrictions on employer direct access to social media. It’s that information about job applicants that employers are prohibited from using to judge them (such as age, marital status, pregnancy and religion) may all be revealed in social media. Employers, who turn down job applicants after being exposed to such information while looking for unrelated potentially negative information, might find themselves having to prove they did not use any prohibited criteria in deciding not to make a job offer.

That same point is advanced by social media screening services that can sift through publicly available social media in order to add an additional dimension to standard background checks. When employers attempt to find and review candidates’ social media themselves, they are exposed to protected class information. Social media screening services generally redact this information so employers only see information that matches legally acceptable criteria.

Social media screening services act as a consumer reporting agencies, and so their activities are governed by the Fair Credit Reporting Act (FCRA). That means employers must obtain signed disclosure and authorization forms from individuals before they can use these services. Employers are also subject to FCRA “adverse action procedures” and have a dispute resolution process in place for social media research, just as they do for conventional background checks.