Social Media’s Use In Employment Practices - Part I

Following their CLE presentation to the Association of
Corporate Counsel’s Westchester/Southern Connecticut Chapter, concerning the
use of social media in employment practices, attorneys Jeff Carton and Myles
Bartley of Denlea & Carton LLP were featured in the Westchester County
Business Journal with a three-part article examining legal and business issues
associated with using social media in hiring, disciplinary and termination
decisions. 

Part I:
          Social media’s use
in employment practices

It is well-settled that the use of social media, for better
or worse, has become a mainstay in employment practices.  Employers, recruiters and human resource
professionals alike have all recognized that social media is an important tool
in employee hiring, as both companies and prospective employees use social
media to enhance their profiles and to present their qualifications in the most
impressive light.

Recent case law and National Labor Relations Board decisions
demonstrate the increased prevalence of social media in areas ranging from
company monitoring of employee communications to employers’ attempt to prohibit
employees’ online discussions about their work environment.  Similarly, social media is playing an
increasingly important role in employee terminations, as employers become more
aware of what their employees do outside of work and how that behavior comports
with a company’s values.

          Social media in
hiring
Multiple surveys reveal that recruiters and prospective
employers are looking at social media when making hiring decisions.  These surveys demonstrate that job seekers
too use social media as a tool to find employment – with 25 percent using it as
their primary search tool and younger job seekers ages 18 through 35 reporting
that seven out of 10 found their previous job through social media.  Companies are increasingly using social media
to identify candidates, validate applicant resumes, and examine potential
corporate “fit,” as well as to disqualify applicants whose social media
postings or information are unacceptable to employers.

Companies’ widespread use of social media in making hiring
decisions implicates anti-discrimination laws at the federal, state, and local
levels.  These anti-discrimination laws,
depending on the employer, prohibit employment discrimination based on race,
color, religion, sex, and national origin; disabilities; age; differences in an
employee’s DNA, and veteran status.

Discrimination claims may arise due to an employer learning
about an applicant’s protected status via social media, by excluding certain
groups who do not receive information about the potential job because of overly
targeted social media advertisements, or because the employer is making a
hiring decision on an applicant’s low social media score where the position
does not justify such a score.

The use of social media in hiring may also bring into play
the Fair Credit Reporting Act (FCRA). 
Companies often use third parties to conduct background or social media
checks on applications.  In that
scenario, the third parties must comply with the FCRA, including its notice
provisions.  Those provisions require
notice to an applicant that a background check will occur, as well as notice
that information having a negative impact has been found, and time to correct
such information.

Another area impacted by the use of social media in hiring
is password protection.  As of 2016, 30
states have passed laws that prohibit requesting or requiring an employee,
student, or applicant from disclosing their username or password in connection
with a personal social media account. 
While no analogous protection exists at the federal level, the Stored
Communications Act arguably provides a similar level of protection.

The lessons concerning an employer’s use of social media in hiring can be reduced to three key points.  First, employers should use social media only as part of a larger recruitment plan.  Second, employers should screen applicants in a consistent manner.  And third, employers should review only publicly available information in connection with hiring decisions.