Websites such as Facebook and Twitter can provide employers a sneak peek into a job candidate’s lifestyle and personality. Many employers have taken advantage of candidates’ unguarded profiles and feeds to make employment and hiring decisions. It’s easy, it’s free, and it can be very telling. So, why not do it? Actually, there are very good reasons not to dive into job candidates’ social networking accounts.
First and foremost, basing hiring decisions on applicants’ social media accounts could be illegal. Wisconsin is currently the only state with laws limiting employers’ rights to access job applicants’ social media information. However, lawmakers in 28 other states have introduced legislation designed to limit such practices. If passed, employers could be precluded from requesting employees and job applicants’ passwords to personal accounts and from engaging in practices such as “shoulder surfing,” in which employers require employees and applicants to surf their personal accounts while the employer looks over their shoulder.
Even in states like Idaho where employers are not limited by social media laws, basing hiring, promotion, or job retention decisions on information gleaned from personal accounts can be illegal and costly to employers. For example, it is illegal to base an employment decision on protected characteristics such as disability; religious preference; and, in many places, sexual orientation. Personal profiles on social networking sites such as Facebook sometimes include information about such characteristics. If an employer’s internet search of an applicant or employee reveals such information, the employer cannot consciously or subconsciously discriminate against a qualified employee or applicant based on that discovery. Further, an employer who is perceived as having based a hiring decision on discriminatory bias based on the discovery of such information, whether via internet search or not, is susceptible to a discrimination lawsuit.
Notably, while many employers may believe they are capable of reviewing personal account information without developing discriminatory bias, a recent Carnegie Mellon study indicated that is simply not true. The study found that employers, including Idaho employers, were less likely to interview job applicants whose Facebook profiles indicated or suggested that they were Muslim or engaged in Muslim religious practices. Researchers conducting the study created four fictitious job applicants, each of whom was given a name suggesting that they were male, Caucasian, and U.S. born. The researchers created identical resumes and Facebook pages for each applicant. The only exception was that the Facebook profile information suggested that the applicant was gay, straight, Muslim or Christian. Researchers sent the resumes to more than 4,000 employers throughout the United States.
While the study found no difference in call back rates for the gay and straight applicants, in the 10 states considered most politically conservative in the United States, including Idaho, Muslim candidates were called in for interviews far less frequently than the Christian applicants. In short, the study suggests that many of the Idaho employers engaged in illegal discrimination based on information they obtained from applicants’ Facebook profiles. Again, these practices are illegal and could subject employers to lawsuits and other adverse consequences.
Aside from being potentially illegal, it can also simply be disadvantageous for employers to base hiring or employment decisions on their negative perception of an individual’s personal profile. A 2013 study conducted at North Carolina State University found that individuals who posted pictures of themselves drinking or, in some cases even using drugs, on social networking sites were as responsible and as hardworking as candidates who did not advertise partying. The study further found that the candidates who posted pictures of themselves partying were more likely to be extroverted, often a positive characteristic, especially in customer and client-service jobs.
INSIGHTS FOR EMPLOYERS
All in all, while it may be tempting to preview job candidate’s or learn more about current employees through social networking websites, it is often not in an employer’s best interest to take that step. Employers who are tempted to pry should consider the potential downsides and consequences of doing so.
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.