An interview conducted earlier this year with Senior Trial Attorney Edward Loughlin of the Equal Employment Opportunity Commission (“EEOC”), who is charged with prosecuting employers for violations of Title VII, and the like, provides valuable insight to employers for considering the use of social media in hiring decisions.
Loughlin warned employers that social media provides them with a wealth of information, a significant tool in assessing applicants and employees, but it also can also serve as a Company’s greatest liability if not properly used because employers are accessing information that is protected by the statutes the EEOC enforces.
Loughlin’s Suggestions for Employers on Using Social Media in Hiring
- Companies need to recognize that there is no one-size-fits-all approach or policy for using social media.
- Update EEO policies to address use of social media and prepare stand-alone social media policies with specificity and make sure that they are being applied even-handedly
- Companies must understand the limitations imposed by the National Labor Relations Board, EEOC and state laws all who have set forth explicit restrictions on the use of social media. Because this is constantly changing and evolving, this will require Companies to remain vigilant in staying up-to-date and reassessing its policies and procedures to comply.
- Social media allows companies (intentionally or unintentionally) to acquire information that falls under a protected category under Title VII, ADA, ADEA, or FEHA, for example, the issue isn’t having the information but how and whether you act on it.
- Is there a legitimate nondiscriminatory business reason to obtain additional information on social media applicants? Do you want to open yourself up to a disparate impact claim filed by an over 40 year old because you want to see what was on his Facebook page or if you do learn information that an employee is pregnant, for example, will you reject the applicant on that basis?
- Train HR, hiring managers and supervisors on use of social media in all areas to ensure that all policies are applied neutrally, including, but not limited to: the front-end with recruiting and hiring, during employment, with social media unlawful harassment, discrimination, retaliation, disparaging remarks, supervisors’ connecting with employees via social media and the extra burdens it may impose, investigations, the Stored Communications Act and criminal and civil penalties, state laws prohibiting requesting user name and passwords and its exceptions, prohibition of “shoulder surfing,” and allowing employees to freely discuss the terms and conditions of employment, and on the back end with retaliation and termination.
- Record-keeping requirements are the same regardless if you get resumes from Facebook, LinkedIn etc.