HR and Facebook: It's complicated

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Continued: HR and Facebook: It's complicated

Article by: DAVID PHELPS , Star Tribune
Last update: February 7, 2010 - 8:59 AM

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Memo to human resources: Be careful what you look for on Facebook; it could come back to haunt.

Minnesota companies may be walking toward thin ice as they follow a national trend of using social media networks to screen potential employees.

A recent national study found that employers were impressed by personality, creativity and communications skills found via the Internet. But employers also rejected job candidates for inappropriate photos, content relating to drinking or drugs and misrepresentation of skills.

Unwittingly, these businesses could be violating -- or close to violating -- anti-discrimination laws that have protected workers for decades.

Currently, there is virtually no case law restricting use of social networks like Facebook and MySpace by employers.

"But there will be," said Sam Morse, founder and chief executive of Minnesotajobs.com, a website that matches employers and employees. "The legal system will be very busy."

Lawyers say they already have noticed an uptick in interest from business clients about the do's and don'ts with social media networks, particularly when it comes to hiring.

Indeed, 2010 may be the year for creating policies to guide the use of social networks for both prospective and existing employees.

In a survey of hiring managers conducted earlier this year for CareerBuilder.com, 45 percent reported using social media in their background checks of prospective employees, up from 22 percent a year ago. Of those 2,600 managers, 35 percent found something that caused them to not hire the candidate.

"This type of screening is clearly on the rise," said Megan Anderson, an employment attorney for Gray Plant Mooty. "But there is very little legal guidance and people don't know the landscape."

Breaking the law

Because sites such as Facebook and Twitter can be personal, employers must be cautious that the information they obtain doesn't result in discrimination by race, gender, religion, disability or sexual orientation. All are protected classes under law. For instance, employers would be breaking the law if they screened out applicants, even before interviewing them, based on racial or ethnic details gleaned from social media sites.

In addition, employers are asking for trouble if they reject an applicant who discloses union organizing, smoking or drinking on a social media site, Anderson said. All are lawful activities.

William Mitchell law professor Deborah Schmedemann agreed. "If you have that information and if it goes into the decisionmaking process, that would be illegal."

Schmedemann also stressed that sites like Facebook are aimed at family and friends, not potential employers.

"What you see on that site might not be true to the person or it could be dated or a misrepresentation of that person," she said. "It could even be a picture of another person."

Cindy Ridley, partner and part owner of HRtechies, a Minneapolis placement service, said she tells clients to "do due diligence before hiring" but never use what they find to make hiring decisions based on race, age or sexual orientation.

"We can suggest to employers that they include in their application process some statement that says 'we do reference checking including use of information in the public domain' and to make it broad enough that if they discover something online it's fair game," Ridley said.

Schmedemann said employers are turning to social media because they "are under pressure to hire carefully" in an economy where there are plenty of job seekers and few jobs. "People fake their résumés much more than they used to," she said.

Schmedemann also said employers may turn to social media because of difficulty getting information elsewhere because of privacy restrictions.

"Employers used to have unfettered access to [job candidate] information. Then it became restricted. Even former employers won't give up much information because of the fear of being sued," she said. "And then, something like this [social media] comes along. The need for information is there."

How to avoid problems

Anderson advises her business clients to use social media carefully, if at all. She tells them to use information they can obtain through legitimate means and to consider a disclosure policy that informs job applicants of the use of social networks in the screening process.

Anderson also suggested having a third party do the job screening so the ultimate decisionmaker does not see any legally protected information that might be discovered on the network.

A 2008 lawsuit in New Jersey showed the downside of employers viewing social media sites. In that case, employees of a restaurant created a password-protected blog to complain, sometimes crudely, about management and customers. A manager learned of the blog and persuaded one of the bloggers to log him in to the blog to read it. As a result, two of the restaurant workers were fired. They subsequently sued and won a $17,000 judgment.

"If you're getting access to something, you need to be careful that you have true consent and you don't go beyond the scope of the consent," Anderson said.

Professional recruiter Gillian Gabriel said she doesn't use Facebook in her screening process. Instead, Gabriel said, she uses sites like the professionally oriented LinkedIn where people often are looking for job and career connections. Gabriel also looks at blog connections posted on a candidate's LinkedIn page.

"Whatever they put out there is fair game," Gabriel said.

David Phelps • 612-673-7269

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