Social media has become integral to everyone’s professional and personal lives. Anyone can access a public account, so people must watch what they say and how they say it. Companies and organizations might be tempted to view applicants’ pages, but there are several things to consider before turning someone down based on their views.
Anything an employee says on social media, even their personal account, can reflect poorly on the company. However, refusing to hire someone based on their online comments and opinions might cross a fine line between protecting the business and infringing on personal rights.
Do Employers Use Social Media Screenings?
Performing social media background checks is well within the employer’s rights — many have reported using them regularly in hiring campaigns. Studies have shown that 43% of companies in the U.S. do this. Furthermore, 61% perform online screening to learn more about a candidate.
Facebook and LinkedIn are among the most frequently used for social media background checks. Employers use these as valuable tools to get insight into a candidate that they might not be able to glean from an interview. This allows recruiters to screen applicants more accurately to find the best match for each open position.
This is such a common practice that social media sites like LinkedIn were created to allow users to present a professional image to show employers. Job boards such as Indeed and Monster also enable candidates to develop professional profiles making it easier for employers to find them online. Still, some people close or delete their Facebook account and reactivate it after they are hired.
Can You Deny Candidates Employment?
The biggest and most important question is: Can you deny candidates employment based on information found on their social media pages? The short answer is yes, but there are several legal risks. Using social media background checks as the basis for your recruitment campaign can cause the company to run up against many privacy protection and employment laws.
These regulations vary in scope and scale. For example, the U.S. has federal and state laws limiting how much information employers can use in hiring. They can vary depending on the state and circumstances.
The Employment-at-Will Doctrine
The employment-at-will doctrine is an agreement that states the job is indefinite and can be terminated by either the employer or employee. This is usually expressly included in the hiring contract.
The doctrine allows employers leeway when terminating employees who act or say things deemed offensive on social media — even if they are unrelated to their jobs. For example, the U.S. Court of Appeals for the Third Circuit case Ellis v. Bank of New York Mellon ruled that the institution did not violate Title VII of the Civil Rights Act of 1964 when it fired Lisa Ellis.
Ellis worked for BNY Mellon as a senior control analyst. She was fired after making racially charged comments on her personal Facebook account regarding a local news story about a councilman driving his car through a Black protest movement.
Her Facebook profile was public and showed she held a senior position at BNY Mellon. The bank’s Facebook page was soon flooded with complaints about Ellis’s online behavior, with comments making disparaging remarks about the company’s values.
After the bank determined Ellis violated BNY Mellon’s code of conduct, she was fired. According to the ruling, the termination based on her social media behavior was not unlawful and did violate BNY Mellon’s written policy regarding online presence.
Laws That Protect Against Discrimination
Several laws prohibit discrimination against potential employees based on race, gender and religious beliefs. Hiring professionals that use social media as part of their recruitment strategy should be wary of breaking these laws.
When looking through a candidate’s social media, the decision on whether or not to hire them should not be entirely based on personal information found online. The candidate can use this actionable legal offense against the company.
One case that exemplifies this is Gaskell v. University of Kentucky — which ended in favor of the plaintiff. It was proven that the candidate, Gaskell, was passed over for a position at the University of Kentucky because of his religious beliefs, which the university discovered through his social media profile.
The National Labor Relations Act
The National Labor Relations Act protects employees’ right to freedom of association. It provides people the right to seek better working conditions and representation without fear of retaliation.
For example, while screening a candidate’s social media, you find they have a history of discussing topics such as unions and wages online. The National Labor Relations Act would prohibit you from denying employment to that applicant based solely on his association with a union which you found on their personal social media page.
Take Caution When Conducting Social Media Checks
Social media background checks can be an excellent method to help screen candidates, but recruiters should be careful. Relying too much on social media information can lead to tripping over legalities that could cost the company.
Devin Partida is a business technology and talent recruitment writer. She is also the Editor-in-Chief of ReHack.com.
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