The Dangers of Social Media – How Employers Can avoid the Pitfalls of Social Networks
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Millions of people are actively engaging in social media. A survey conducted by Jobvite suggested that nearly 83% of Recruiters and Human Resource professionals surveyed were planning to use social media for recruiting job seekers in 2011. Dr. Lisa Harpe -- an Industrial Psychologist and Principal Consultant at Peoplefluent -- and Ms. Christy Kiely -- an attorney at Hunton & Williams – discussed the legal implications of using social media in employment decisions at the 2011 NILG conference.
Dr. Harpe indicated that many Recruiters and Human Resource professionals are turning to social networks (e.g. Facebook) and microblogs (e.g. Twitter) in making hiring, promotion, and termination decisions. However, Dr. Harpe cautioned that the apparent ease of searching for and reviewing the personal details of applicants’ or employees’ through social media can quickly give way to unwanted legal ramifications for an organization.

Dr. Harpe provided several examples of how Recruiters and HR professionals’ actions may violate equal employment law. These include:

Disparate treatment:

•Only looking at the social media of some candidates and using that information to evaluate the suitability of the candidate for the position. For example, you decide to conduct a search of social media only for the female candidates who have applied to a position and decide to exclude females from the interview process who are of child bearing age or who already have children.


•Evaluating social network information differently based on protected class status. For example, two equally qualified candidates have posted pictures of their social activities on Facebook; it appears as though one candidate attends Church on a regular basis and the other does not. You decide to hire the apparently non-religious individual because of a belief that religious people are not a “good fit” with the organization.


Disparate impact:

•Only considering applicants who have a social media profile. Though seemingly harmless, this approach may be problematic because the demographic variables of the users of social media can vary by the type of social media (i.e. Facebook has more users that are under 40 than over 40).


•Only considering applicants with certain information on their site. For example, if you only consider applicants who appear to be active in Ivy League networks you may inadvertently be limiting your pool of applicants. Some minority groups are underrepresented in certain Ivy League institutions.


It is important to note that any information that is used to screen job seeker’s must be job related or consistent with business necessity. Additionally, once recruiters and HR Professionals begin evaluating an individual’s qualifications via social media they are responsible for accurately dispositioning the applicant according to the Internet Applicant regulation and record keeping requirements.

Dr. Harpe indicated that using social media in hiring may make federal contractors more vulnerable to record keeping violations. For example, if social media is used to evaluate applicants, the web link that was the source of the applicant’s information would have to be saved in a manual log. A manual log is generally more difficult to maintain and web links do not have a permanent shelf life. Hence, during an audit the federal contractor could find that their database has not been properly populated and/or that the web link that was stored as a source of the candidate information is no longer viable. In either of these circumstances, the federal contractor could be penalized by an enforcement agency for not maintaining accurate records.

The negative impact of social media on the employment setting is not limited to identifying suitable candidates for employment. Ms. Keily discussed how employer’s and employees’ actions on social media may result in undesirable outcomes for the organization (i.e. negative publicity for the organization, the publication of confidential information, retaliation, etc.) and, in some circumstances, legal proceedings.

Ms. Keily also reminded the federal contractor community that employers are not entitled to look at applicant/employee information merely because it has been posted on the Internet. In addition, certain forms of speech and individual actions are protected under the law (i.e. commenting on work conditions, organizing other employees to change the conditions of the workplace, etc.).

Both Dr. Harpe and Ms. Keily recommended that federal contractors develop and implement social media policies to assist in guiding employee behavior and to protect the organization from legal vulnerability. Recent estimates suggest that 45% of organizations do not have a social media policy (HCCA/SSCE 2011 survey). In addition, Ms. Keily recommended that employers maintain current and objective job descriptions that highlight the employer’s expectation of the employee. Job descriptions that are current and based on objective standards can be helpful in defending an organization against an employee if the organization can make a connection between the employee’s behavior on a social medial site and the expectations established in the job description.

In summary, regardless of how your organization plans to use social media in the employment arena there are a few guiding principles that may reduce your organizations legal exposure and assist your organization with EEO regulatory compliance:

•Create a detailed social media policy for employees to guide their general behavior with regard to the organization and set expectations regarding disciplinary action for violating the policy.


•Create a detailed social media policy to provide clear guidance on how social media should be reviewed for prospective or current employees; particularly, if the organization has chosen to evaluate individuals’ social media as part of the employment screening process.


•Apply all social media policies consistently and fairly for all individuals associated with employment at your organization.


•Put procedures in place to ensure that decision makers are screening individuals’ social media sites for information that is job related and a function of business necessity.


•Keep accurate records of the information that was used to screen individuals in your searches.


•Be aware of state and federal laws governing the information organizations can access and evaluate about individuals when making employment decisions.


Dr. Harpe suggested that the best approach to avoiding legal conflicts that are the result of social media… is to avoid using social media when evaluating current and prospective employees. However, if your organization is committed to using social media in the employment context, one guaranteed “best practice” is to make sure your organization is complying with equal employment principles outlined in federal and state laws.