Risky Business

A new survey finds more employers are using social media to weed out job candidates, and experts say those that do it are making a serious mistake.

Wednesday, July 16, 2014
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Legal experts have one main thing to say to employers considering using social platforms such as Facebook, Twitter or Instagram as an initial job-candidate screening tool: Don't do it.

According to a recent survey from Careerbuilder, more employers are turning to social networking sites to find information on potential candidates. And, CareerBuilder reports, 51 percent of employers who research job candidates on social media say they've found content that led them to not hire the candidate, up from 43 percent last year and 34 percent in 2012.

Two employment lawyers who regularly counsel employers say using social media as a first-cut screening tool could not only end up in litigation, but could also result in losing out on a potentially talented worker.

Todd Wulffson, a partner in the Orange County, Calif. office of Carothers DiSante

& Freudenberger, has more than 20 years of experience advising clients on social media's role in the hiring process. He says using social media to screen candidates is fraught with peril for employers. Primarily, the risk comes in the form of an applicant retaliating if they are not hired because of social media -- for a variety of reasons.

"The Careerbuilder survey doesn't surprise me, as employers are using social media more and excluding a higher number of candidates because of it," he says. "It's also a reason they are being sued more, because most companies are using social media improperly."

Dianne Moretzsohn, counsel in the employment group at McCausland Keen & Buckman, in Radnor, Pa., also is not surprised by employers reporting increased social media use and rejecting candidates as a result. She also cautions that employers are walking a fine line by randomly using social media to vet applicants.

"It can be a tremendous risk, because even if they don't mean to do it, employers could be screening using illegal or impermissible criteria, such as race, sex, ethnic background, etc.," she says. "It's obvious you can't use social media and hope to control for that."

Wulffson says he noticed in the Careerbuilder survey results that the top-ranked (46 percent) reason people were getting hired after a social media search is the employer "got a good feel for the job candidate's personality, and could see they were a good fit within the company culture."

"What does that really mean?" Wulffson says. "Does that mean they are the right age, gender, color? Are they more attractive? You can see where this can lead."

At the cost of trying to save money and time, employers may wind up hiring more people who are younger white men, for example.

"They are creating a situation that has potential liability," Wulffson says, adding that using social media to research a job candidate can make sense if you are searching for a company blogger or someone else whose skills are relevant to social media. However, he recommends using a third-party vendor to find people for that type of work because it would exclude all the people without those specific skills.

Will someone know the real reason why they didn't get an interview? That's a problem Moretzsohn sees in terms of holding employers to what's legal. The Fair Credit Reporting Act makes it very clear that you must inform job candidates if you are using screening tools such as background checks and credit checks to vet them. With social media, no such notice is typically given, nor is it required by law. At least not yet, say Wulffson and Moretzsohn.

There are many good reasons for the FCRA, Moretzsohn says. For example, with knowledge of a background check, a job candidate can have the chance to correct misinformation, because inaccurate information is fairly common.

Wulffson adds that credit and criminal background checks can only be relevant to the open job position. For example, you can't check the DMV for a driver's license if driving it not required for the job, or look for a bad credit rating if the job doesn't involve working with money or financial transactions.

"You can't exclude people on those factors, and with social media you could be excluding people as a protected group even if that's not the intention," he says.

Both Wulffson and Moretzsohn understand why employers gravitate to social media as a means to sort through job candidates. For one thing, it's easy. And for another, it's cheap. But, they say, it's too risky and it's wrong.

Wulffson says there has been a surge both at the state and national levels, with the EEOC clearly telling employers it is looking for "systemic" violations in hiring. One way to create that scenario is via social media, which could easily exclude people as a protected class or cause a systemic reason for not hiring specific people.

Another potential legal problem is using social media inconsistently, say from location to location. Or, while an HR professional may know enough to steer clear, a manager in a field office may not have read the memo.

"If you want to do it, you must apply it equally," he says. "If not, you are creating instant liability. I do labor employment defense and my personal involvement with these cases has spiked considerably in the last five years."

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Wulffson cites another risky trend, employers that make an offer and then decide to check out social media and rescind the offer the weekend before the employee is to start work.

"Instagram and YouTube are the worst now," Wulffson says. "Also, when you look at a social media site, it's very hard to unlearn what you find out. If a person has marched in a gay rights parade, it could change perception. Maybe you didn't factor in as an employer, but if the candidate finds out you looked at their content, the argument is that's the reason they were not hired and it was not disclosed."

Finally, Wulffson says the potential is there to lose good candidates because social media is not designed to replace a resume. For example, a person could be a Rhodes Scholar posing with a beer bong. It could be the only time they used a beer bong in six months. Or worse, someone else could have tagged the photo and posted it without the job candidate's permission.

"With social media, you are going to wind up excluding candidates, and it will have nothing to do with their abilities," he says.

From a practical HR perspective, Joyce Maroney, director of The Workforce Institute at Kronos Inc., says social media presents the same sort of challenges to HR as reading a resume or conducting a phone interview. It can give you solid screening information, but the candidate could end up being very different in person than his or her profile would indicate.

"Like a resume, social media personas can be crafted to highlight key attributes," she says. "Unlike a resume, however, a LinkedIn profile might be a bit more reflective of the truth, as it can be seen by everyone -- as opposed to a slightly embellished resume crafted to nail that first interview.

 To understand the complete picture of the candidate, she says, companies should trust the recruiting process all the way from sourcing to the in-person interview to the final project stage, with social media only used as a "checks and balances" part of that process.

Maroney says social media certainly should not be a determining factor in hiring or not hiring someone.

"A person's social footprint could add more color to the identity of a candidate going through the process, but it's still the in-person interviews, references and potential project or presentation that determine whether or not someone is a fit for the role and company culture," she says. "Social media should never be used to completely vet out candidates."

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