Social Media and the Workplace: Hiring

This post and the next several posts will be about social media and its use in the workplace and the various laws that govern that interaction.  Today’s post discusses using social media during the job application process from the employer and potential employee’s perspectives.

Hiring the Right Person for the Job Requires Information

Accurate information about potential hires is valuable and social media businesses know that fact.  Just look at LinkedIn’s S-1 Filing with the SEC, in which they state that the limiting of access to their website and updating of users’ information would negatively impact their business model. (Source: LinkedIn’s S-1 Filing, See pg. 24)  They realize that up-to-date information is a must for the hiring of skilled workers.

The reality is that information about potential and current employees is valuable to any small business whether it is in Honolulu or somewhere else, but there are legal boundaries that both employers and employees should know of.

Employers using Social Media to Check Backgrounds of Potential Hires

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Do you search for an applicant's Facebook profile as soon as you see their name?

Let’s say you just graduated.  You are applying to some business or firm in downtown Honolulu.  You submit your resume.  What happens?  Well, the person responsible for the hiring will likely peruse it and if interested do a precursory Internet search on your name to determine if they want to interview you.  Why?

Employers want to hire the best people to meet their goals.  Legally, employers are also responsible for their employees, so they want to know they are hiring someone they can trust and act responsibly.  Like it or not your social media is a representation of you, especially considering you are the one that updates it.

Employment-At-Will

Hawaii is an employment-at-will state, what that basically means so long as a business does not violate a specific law, that downtown Honolulu firm you are applying to can choose not to hire you for any list of reasons or no reason at all.  So posting that you are getting drunk every night of the week might give an employer pause and ask themselves would you behave the same when employed?  It will probably affect the businesses hiring decision.

Discrimination

Discrimination is one of those specific laws that a business cannot violate. In regard to today’s topic, employment discrimination includes hiring practices, such as application forms, interviews, and selection.  In general, Hawaii and federal law, specifically protect the following statuses:

• Sex
• Race
• Ancestry/national origin
• Religion
• Color
• Disability
• Age
• Marital status
• Income for child support obligations
• Arrest and court record
• National Guard participation
• Sexual Orientation
• Breast Feeding

Finally, do not forget that Hawaii recently added gender expression as a protected status in regards to employment matters. If you want to know more read my earlier post.

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Do you view all candidates equally without regard to race, gender, color, etc . . . ?

An example of violating discrimination laws would be if you, as a business owner, only checked Facebook or the Internet on applicants of a certain race or gender.  Another type of discrimination is if you as the employer searched social media accounts on all applicants, but you used the same information differently against one particular type of applicants.  For example, if all your applicants had pictures of themselves of drinking alcohol in public, but you viewed that fact more negatively against the female, or White, or gay applicants against the rest of the group that would be considered discrimination.

Privacy

Besides discrimination an employer should also be concerned with an invasion of privacy claim by a potential employee.  Generally, the potential employee has a tough time asserting this claim because you need a “reasonable expectation of privacy” and a lot of people keep their social media profiles open and to the public.  However, it is clear that if the applicant is using the highest privacy settings and the employer somehow gets pass all these barriers the claim is stronger.

Fair Credit Reporting Act

In addition, to revealing protected statuses like race or religion, intruding on their privacy, an employer’s simple act of searching social media may run them afoul with the Fair Credit Reporting Act (FCRA).  This federal law does not just cover credit reports, but cover the simple act of surfing the net for information on the potential employee.  Essentially, this compiled information is considered a “consumer report” and an employer cannot use this information unless it was obtained from a credit reporting agency, consented to by the applicant, or that applicant has been provided written notice of such a search.  Oft times a small business utilizes a third-party to its hiring because it is more cost effective, but what they do not realize that the background checks (which includes social media searches) need to be authorized by the applicant unless it violates the FCRA.

Violating Terms of Use

I want to make a quick mention of violating terms of use on a social media site.  Those conditions that Twitter, Facebook, LinkedIn, etc . . . dictate how users, including people just stopping by to search someone out may use their sites.  You may run into trouble with those rules when you conduct searches and use that information incorrectly.  This in turn may expose you to other various lawsuits by the potential employee or even by the social media company itself.

Some Quick Tips and Last Words

For Potential Employees:

1. Use the Privacy Settings on Facebook;
2. Watch what you say on Twitter;
3. Get a LinkedIn account;
4. Search yourself on Google and make note what pops up; and
5. Take steps to clear up negative impressions on the Web.

Basically, assume that any business you are applying to will search for information on you.  It is helps them evaluate you for the job.  If the information that you make public casts a negative light on you chances are they will not consider you for the job.  I suggest getting a LinkedIn Profile, as it can act as a professional resume and is readily accessible online, and it can easily be the first thing that pops up in a Google search on your name.  Also it can give more details in your profile than in your paper resume.  It also gets you in the habit of updating information about yourself for business purposes regularly.

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You are in control of your social media profiles, so make sure when you do a job application that your profiles are up to par with your resume.

*This one is for law students.  In recent years, the Florida Board of Bar Examiners filed their recommendation to search a bar applicant’s social media profile for the character and fitness investigation part of the application.  While Hawaii Bar does not consider that part of its application process yet, you all should be aware that a lawyer’s reputation is a key element to the practice of law.  With social media becoming part of our daily lives it is likely that many other bars will follow the FBBE’s recommendation.

For Employers:

1. Review employment/hiring laws;
2. Review hiring practices and polices, if you do not have any, now is the time to create some;
3. Review the terms of use on any social media site you use for hiring;
4. Implement/update a hiring policy so that is consistent with the law and terms of use agreements.

The bottom line is do not consider factors that have no relevancy to job performance, such as race, age, and sexual orientation.  They all are protected statuses by the law and using them as your criteria for hiring is discriminatory.  In addition, you should realize that a lot of social media information, but up my individual users is not always reliable.  In fact, people like to put up jokes, stories, and other forms of untrue information.  Finally, if you are unsure about the hiring policies or decisions that you are making have an attorney review them.

As a measure of practicality remember to take into account business factors too.  You should think about things like employee morale and public when you consider your hiring practices.  You may consider using social media as a beneficial recruitment tool rather than trying to search out every flawed characteristics of a candidate, especially with how LinkedIn is formatted.

Next time on Social Media I’ll discuss using social media use on the job.  Admit it.  You have checked your Facebook at work today!

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*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.