Hiring in the social media age

Written on Jul 19, 2016

By Jessica Salerno, OSCPA content manager

It’s not a tale as old as time, but it is as old as the last 10 years: A recent college grad sends resumes to many companies and even gets called in for interviews, but is shot down every time.

The culprit? An embarrassing social media mistake. A questionable Facebook picture or controversial tweet sealed her fate before she even made it to salary negotiations.
“People coming out of college often haven’t thought about that,” said Marie-Joëlle Khouzam, partner at law firm Bricker & Eckler LLP. “They’ve lived in the YouTube world, and when their friends videotape them at a bar and then post it online no one thinks anything of it.”

One of Khouzam’s specialties is employment and labor law, and she has seen how information on the internet can affect a company’s hiring decisions. It’s not uncommon for recruiters or hiring managers to look up a candidate online to see what pops up.

“They sometimes look for verification that their good instinct about somebody they met or somebody whose resume looked good really passes muster,” Khouzam said.
Luckily for new grads, she said many employers might qualify images of college students doing what college students do as nothing more than“youthful indiscretion.” However, it’s still good practice for those who are job hunting to do a social media sweep and consider editing their online presence to remove anything inappropriate, sometimes even deleting their accounts altogether.

“I have gotten feedback from various clients before that they’re not interested in a candidate because of questionable materials they have found online,” said Chaz Hixen, director of accounting and finance recruiting at CMax Advisors.

However, Hixen said the employer will not always tell the candidate they are turned down because of what was found on the internet. Often they will give a “canned response,” something along the lines of “we decided to go in a different direction or are moving forward with a candidate that was a better fit.”

Although depending on the industry or demand, the content of social media accounts hold varying weight in the hiring decision.

“Some hiring managers are not looking at it heavily in accounting because the market is so competitive,” Hixen said. Accounting jobs are at an all-time premium right now.

“The market is very strong for that three-to-five-year experienced person,” he said. “It’s becoming so competitive that they might not even have time to do their own social media checking, let alone finding something that would change their decision if they’re interested in hiring a candidate that was extremely difficult to attract in the first place.”

Employers will avoid confirming publicly whether they searched the social media profiles of candidates, out of fear about legal claims. “Checking a candidate’s social media presence could make a company a target for discrimination if they relied on information about a candidate’s protected-class status in making a hiring decision,” Khouzam said, referring to factors such as race, gender, disability or other legally protected classes.

If employers rely on information they wouldn’t be legally allowed to ask in the interview, such as an indication of medical or disability status, and that is the basis for why the candidate didn’t get the job, the employer could face a lawsuit.

For example, in C. Martin Gaskell v. University of Kentucky, the school factored in a top candidate’s religious views shown on his website when rejecting him for a position in 2010. After the applicant sued the university, the court rejected the school’s argument that the applicant’s religious views on evolution would compromise his role as a scientist.

The school ultimately settled shortly before trial for $125,000.
Social media sites aren’t the only way for employers to dig up dirt. Criminal background checks can be done online for as little as $20, but that doesn’t mean everything in those checks is factually correct.

“There’s a lot of misinformation out there. I would be very, very cautious about using information I find online about somebody,” Khouzam said. 

Khouzam referenced the Fair Credit Reporting Act, which governs how an employer can handle information obtained by credit reporting agencies. Using third party vendors means a credit reporting agency can only obtain information when the applicant has signed a consent form. But if the background check is done in-house, the hiring company does not require a consent form to be signed. However, Khouzam warned that if the CFO or HR person doing the background check isn’t trained in that area, they might not fully understand the information they receive or know what they are or are not permitted to rely on. For example, information about arrests, even if it is in a “public” record, cannot be relied upon in making a hiring decision. Even information about convictions can only be considered if there is sufficient indication that there is a business necessity (i.e.¸it relates to the position being applied for, it is recent enough to warrant consideration, and an individualized inquiry has been made about the relationship between the occurrence and the position).

The days of employers asking for social media passwords to get into applicant’s accounts are long gone, although occasionally it still happens. Legislation has been introduced or is pending in numerous states that prohibits employers from requiring or requesting passwords to obtain access to social media accounts of employees.

“On one hand, people post content online that they clearly want people to see,” Khouzam said. “On the other hand, if they’re smart and have limited their security settings to just family and friends, they certainly didn’t intend for an employer or other unauthorized persons to find what they’re doing in their off time.”

There’s also the issue of an employer doing too little research. If an employee who posts sexually aggressive content online assaults a coworker shortly after being hired, that could potentially give rise to a negligent hiring claim based on the employer’s failure to sufficiently vet the applicant. Nonetheless, Khouzam notes she is not convinced that the courts are going to put that additional level of obligation on an employer, because doing so comes with many risks for the employer, such as the ones noted above.

“It really is a balancing act,” she said. “I agree you have to do due diligence, but where do you draw the line?”

When doing background research on a potential candidate, Khouzam suggested employers ask candidates about gaps in unemployment, and verify any degrees or certifications they claim to have that may be needed for the position.
In today’s virtually obsessed world, employers and job seekers would be wise to tread lightly.

“The internet is a strange and mysterious thing,” Khouzam said. “Seemingly harmless things can come back to haunt you years later.”

Social media and the workplace
Hopefully you never find yourself in a legal battle over social media use, but not everyone is so lucky. Here are some recent employment cases involving social media:

Reese v. Department of Interior – An applicant filed a claim with the Equal Employment Opportunity Commission alleging she wasn’t hired due to age discrimination, and that the employer’s recruitment specifically through the use of Facebook was discriminating against older workers who do not use social media sites.

Yancy v. U.S. Airways – An employee of an airline sued her employer for discrimination when a coworker took a provocative picture of her and posted it on his Facebook page, alleging she had been subjected to sexual harassment.

Three D, LLC (Triple Play) – A sports bar fired two employees after negative comments they made about their employer on Facebook. The National Labor Relations Board found that the sports bar had violated federal labor law regarding employees’ right to engage in protected, concerted activity under the National Labor Relations Act.

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