An employer turns down a job application after seeing on the candidate’s Facebook profile that they are a heavy drinker. A company rejects an application after seeing on Twitter that the candidate is a Muslim with a veil around her head.
Another employer rejects an application after seeing on their Facebook profile that they use derogatory terms when commenting on pictures and posts. These examples illustrate how technology has changed the way companies screen prospective employees and how these may eventually lead to legal implications based on protected grounds.
In this rapidly-growing world where technology is accessible almost everywhere, employers and recruiters are utilizing technological methods to screen and evaluate prospective employees.
In order to ensure the candidates are right for the position, employers are looking far beyond just resumes and interviews by reviewing their personal social networking sites out of which Facebook, LinkedIn, and Twitter are the most popular.
This has also landed some employers in trouble as there are legal issues in interfering into others’ privacy. Statistics have shown that most employers and recruiters admit to using social media as an evaluation tool for recruiting.
Data analysis has also showed that most candidates are aware of employers viewing their information through social media which could also indicate that potential employees may polish their social networking sites to appeal to their prospective employer. Majority of candidates claimed that they do not have anything to hide on their profile and do not see their profile as private information.
Some candidates agree that employers do have a right to use the information online in decision making. Internet screening presents new opportunities as well as challenges for hiring as it is able to reveal job-relevant and irrelevant information about the candidate, which may not be available through other resources.
Although it is not illegal for employers to check potential candidates’ profile, there are some ethical and legal implications attached to privacy. For example, employers have admitted to saying they did not hire a candidate if their social networking site revealed them to be a binge drinker.
However, drinking alcohol is a legal activity in many off-work contexts. This paper examines why employers should and should not use social media in making hiring decisions. In addition, it looks at the legal issues when making use of social media and provides rationale for permitting it to a certain extent.
Furthermore, this paper will examine different court cases that have taken place in the past that have gotten employers into trouble for legal problems. Finally, the paper will conclude based on facts and opinion on whether social media should be allowed to be used as a screening tool and When Should Employers Use Social Media to Recruit
Social media has a major impact on business communication practices which helps to increase profitability, sustain reputation, and empower employees.
“There is nothing inherently wrong with accessing publicly available information about a candidate as part of the hiring process,” says Stuart Rudner of the Canadian HR Reporter (Rudner, 2012). With Facebook having over a billion users, and given the variety of access to social media, it is arguable negligence not to make use of it for selecting the best applicant for the position.
More than one-quarter of Canadian employers are using social media to research candidates (Sullivan, 2011). Research showed that 45% of companies in 2009 used social media as a recruiting tool (Budden, Elkersh, Vicknair, & Yancey, 2010).
This stands as a competition for those companies that are not utilizing social media for hiring the best candidate. With the growing number of users accessing social media to advance their career, it is an opportunity for companies to be active in networking online by building their brand and engaging potential candidates.
By engaging candidates and learning more about them through these tools, companies can evaluate if they are the best option for the position. With employers having access to a wide range of networking sites, it is more efficient for them to look up additional information about the candidate while saving cost and time.
One research showed that a candidate was able to secure a job because their social media profile showed them as creative, well-rounded, and a good fit for the company (Budden, Elkersh, Vicknair, & Yancey, 2010).
Companies use this data in order to inspect whether a candidate maybe outgoing. For example, someone who does not have any social networking profile is thought to be likely hiding something or is introverted or is not well-versed with technology (which is a requirement for most professional jobs).
Companies can weed out candidates using this information and possibly find applicants that are likely to fit in with their corporate culture.
Sites such as LinkedIn helps recruiters in recruiting candidates by expanding the reach of their personal networks, contact candidates directly, and manage an array of talent (Schawbel, 2012).
With most people being aware that employers do reference their profile for character check, people do believe that employers have the right to view their information in order to learn about the candidates’ personality and to ensure the person is not a liability (Budden, Elkersh, Vicknair, & Yancey, 2010).
In conclusion, employers should be using social media only for job-relevant purposes. Employers should take specific steps to ensure that they are in fact finding information about the right job applicant and not of someone who may have the same name.
Employers should also take steps to believe in reliable sources about the validity of information they find. It is also recommended that employers should not judge a candidate based on having one picture with a beer in hand as that is not relevant to the job and one picture may not say the whole story.
It should be in the employer’s best interest to hire a third-party to do the online search besides the recruiting committee as they may already have a bias formed about the candidate and will only find information that will prove their bias right.
By having another source do this, the company can benefit in gaining only relevant information and screen out dangerous information that may put them in legal troubles. If this step is done properly, the company can credibly show that their decision was not based on discrimination.
If an individual is not chosen for the position, the employer has to ensure that they provide non-discriminatory reasons for why the individual was not chosen which may take additional time but saves millions of dollars in the long run for the employer (Funari, 2012). What Are Employers Finding?
Employers are finding that it is easier to screen out applicants through a media check as it helps to reveal their real personality. Students especially write inappropriate content which may seem as a joke to them but would be offensive to the employer.
Employers have also found sexually explicit information that may be potential causes for sexual harassment in a workplace context (Harrison, 2008).
Information that are not easily found through resumes and interviews such as a candidate’s reason for quitting another job, poor work ethic, racist/sexist comments, and alcohol or drug comments are exactly what helps employers screen out the bad applicants through social media.
Although employers may be looking beyond relevant information to content that are irrelevant to the position, it is the best way to headhunt applicants and verify their resumes while gaining insight into their characters (Social Media in Recruitment, 2013).
Most employers have admitted to saying that they made their decision based on content found through social media. A survey revealed by careerbuilder.com found that 51% of employers did not hire candidates based on what they found about them online (Messieh, 2012).
The major reason behind this was due to the candidates having lied about their qualifications on their resume when in fact their qualifications were poor. Although there are negative consequences to using social media as a hiring tool, there are also positive outcomes. 64% of employers were able to find candidates who had been truthful about their qualifications and were a good fit for the job (Messieh, 2012).
Employers also have to be careful not to judge candidates based on their gender, race, religion, or culture as this might lead the company to legal issues if the candidate feels they were discriminated. The public has been warned that content posted on social media can be easily found by anyone and should be conscious of what can be seen publicly. Why Should Employers Not Use Social Media for Recruiting?
Employers know that applicants can lie on paper applications so using social media enables employers to learn more about the individual. The potential threat is that candidates also know that employers are screening them online so they will polish their profiles to look the most appealing. Using social media maybe to reduce cost, time, and turnovers but this in fact may backlash when the potential candidate manipulates their profile.
A study revealed that 70% of students removed inappropriate materials from their profile to look credible and appealing to employers (Budden, Elkersh, Vicknair, & Yancey, 2010).
This yields that most information found about candidates could be wrong again if they did not seem valid on the resume either. In addressing whether information found on any social media is credible, employers must consider whether internet screening generates job-relevant information or just forms more bias for the employer to judge.
Another risk associated with using social media for hiring is that the labor pool does not fully represent the demographics of the general public (Social Media in Recruitment, 2013) which is another threat to the employer as the employer may potentially be not giving a chance to the older demographic as they are not well-versed with technology.
This may also form employer bias against the candidate possibly seeing them as introverted, not outgoing and poorly versed with technology. It is completely alright to look someone up on the internet as the internet is public property and there is nothing illegal about it but the liability comes in when that information might be used for hiring decisions without coming back and talking to the candidate (Greenwald, 2008).
Some human resource professionals find that using social media is violating candidate’s privacy and leads to ethical concerns (Harrison, 2008).
An important ethical dilemma that affects both the employer and the potential employee is that employees may believe that the employer cannot view everything they post when in fact it maybe public whereas the employer may believe in everything they read about the candidate.
Ethical concerns are arising about companies using information such as demography, religion, or gender through social media to eliminate potential hires which could lead to law suits costing the company a lot.
It should be considered that the online resource should be handled with care to avoid legal entanglements. The best employers will stay on top of evolving trends by utilizing these tools for benefits for the candidate and the company (Social Media in Recruitment, 2013). Legal Concerns in Using Social Media for Recruitment
A profile may seem only as a form of networking for a candidate with their friends and family whereas it may potentially be sketching an image of themselves for a prospective employer which may be different from how they would like to be projected (Maltais, 2012). Questions are being raised regarding the legality of using social media for hiring purposes and a legislation in Maryland and Illinois have already banned public agencies “from seeking access to social networks” (Maltais, 2012).
New York states that employers cannot “discriminate against somebody based on activities they engage in during their private time” (Greenwald, 2008). According to a news report released by Global News, Canadians need to worry about being asked for passwords for their Facebook profile when being interviewed as this “practice could be in violation of multiple federal and provincial privacy acts” (Bogart, 2012).
David Goodis, Director of Legal Services, Information and Privacy said that asking for passwords could find the employer in violation of PIPEDA and the Ontario Human Rights Code (Bogart, 2012). PIPEDA has limitations on collecting personal information and employers can violate this by asking for more information such as passwords, according to Global News.
This is in violation also of the protected grounds of Saskatchewan and Canada as employers will have access to religion, race, culture, gender etc. while accessing a profile using a candidate’s password. A threat to the company that will arise from this issue that is heavily costly would be the violation of the Human Rights Code. In Ontario, password sharing is a “direct violation of the province’s human rights code” (Bogart, 2012).
Another ethical concern here is that the employer can form bias based on information regarding race, culture, disability and gender which is also a violation of the Human Rights Code. This would be a potential human resource hazard for employers, lawyers advise (Maltais, 2012).
This issue becomes even more of a legal issue when the employer is accessing unnecessary information of the friends of the prospective candidate, violating their privacy too. This mistake can only be defended by the employer if they can give just cause on why he/she accessed information of others without their permission.
Facebook is also threatening legal action against any employer seeking for applicant login information as it is a “direct violation of the user’s agreement with Facebook” (Bogart, 2012), potentially causing much more damage to the company reputation. Some companies have gone to the extent in creating fake accounts to be “friends” with the potential candidate to access restricted information about them which is highly unethical and illegal under the privacy policies of Canada.
It is also violating a person’s right of privacy if the employer accesses information about them without their permission. Observers also say that employers may be leaving themselves vulnerable to charges by using social media as a recruitment tool and culling “minorities, homosexuals, and other applicants who are members of protected classes” (Greenwald, 2008).
Even though it may not be the intent of the employer to use this information for hiring, it could be used as evidence to file a lawsuit against them for discrimination. It should also be taken into account that it is highly unlikely for employers to find good information related to job-content from a social media if it cannot be understood through a well-run interview.
Therefore, the potential benefit of doing this may be outweighed by the potential risks associated with it. In Canada, PIPEDA laws and the Human Rights Code prevent employers from unlawfully denying applications based on violation of privacy rights and violation of the Human Rights Code. Using social media to recruit is an emerging issue and there have not been many cases in Canada where the employer has been sued for violating these rights.
It is a growing issue in America and certain states have laws in place to prevent illegal employer behaviors from happening. In Canada, Ontario is the first province to address legal issues in using social media for screening and soon, there will be laws passed in all provinces. Permitting Use of Social Media to a Certain Extent
It is hard in this growing world of technology to completely ignore the usage of it to screen potential candidates as employers have growing concerns about high turnovers.
Although it is not illegal to review information about candidates through social media, employers should take certain steps to ensure they are within legal limits to avoid facing a lawsuit. Employers should have a policy in place that states their exact purpose of using internet search for hiring and also include that it does not base decisions on race, color, gender or ethnicity.
As mentioned before in this paper, employers should consider using a third-party source when monitoring candidates through social media to only gain information that maybe lawfully considered in the hiring process.
It should be lawful that employers should not consider or take into account actions caused by employees’ off-duty such as their drinking behaviors. Employers should take precautions in following the existing laws in hiring and be mindful of the laws being developed in this area as well (Mchale, 2012).
Employers should be extra careful to not intervene into a candidate’s friends’ information to form their opinion on the job applicant. A written authorization should be obtained from the candidate first to ensure they know the employer will screen them online. This will avoid potential risks and lawsuits if the employer and employee are both in agreement.
Legal Court Cases against Employers for Discrimination Based on Social Media when Hiring It is highly tempting for any employer or recruiter to use social media when hiring their potential candidate to ensure they are the best fit. It should also be in their best interest to identify consequences associated with it.
Legal court cases can be examined in order to understand this concept better. Since this is only an emerging issue, not many cases have been associated with this topic. Case #1: Martin Gaskell v. University of Kentucky
Martin Gaskell, an astronomer from the University of Nebraska filed a complaint when he was rejected a job at the University of Kentucky based on his religious views. He was the leading candidate for the position until someone did an internet search on his notes which explored several topics such as how the Bible could relate to contemporary astronomy. They worried that his outspoken public view on creationism and evolution could bring bad reputation for the company.
They accused Gaskell of being evangelic which would also be a matter of concern for their dean. The University worried that by hiring Gaskell they would expect similar content of his previous works posted to their department web site which might stir up a controversy. Gaskell’s lawyer, in response, asked if the University would deny an application saying the candidate was a Jewish or Muslim as their statements merely mean that they reject Gaskell’s religion.
Under the Title VII of Civil Rights Act of 1964, it is unlawful employment practice for an employer to discriminate against an individual’s religion. Although the lawsuit was filed and the case moved forward, Gaskell did not end up suing the University as much evidence was found that Gaskell was not offered the job not due to his religious views. They were abiding by the laws of the University to ensure that Gaskell was not just representing his own opinions into the Universities’ webpage.
The University provided enough evidence to support its argument to prove that religion was not a motivating factor for denying Gaskell the job. The case is still pending and Gaskell’s motion for partial summary judgement was denied (C. Martin Gaskell v. University of Kentucky, 2010). Analysis:
This case is a good example of discrimination on protected grounds based on religion. It was also mentioned that Gaskell was asked at the end of his interview about his religious beliefs. This is an inappropriate question to
ask a candidate as it is not job-relevant as well as discriminates the applicant’s religious views.
It was legal for the University to have searched his previous works to ensure he was a good fit for the company, but it was completely unlawful to have discriminated his work due to his comparison of religion. This is not just cause for the University of Kentucky to have denied an application because Gaskell was a qualified applicant on all bases.
This case is an example of how information from social media is used as an inappropriate tool for recruitment as it revealed unnecessary and job-irrelevant information about the candidate to the employer.
Their decisions were entirely based on bias and Gaskell was unlawfully not granted the job. Although the University of Kentucky did present evidence on abiding by its policies to ensure Gaskell does not base his writings simply on his opinions, it was unlawful to have asked a discriminatory question. Case #2: Estrada v. Clace Holdings and Smith
This case is an example of how utilizing just one social media can lead to a person losing their job. The complainant, Estrada, was dismissed without just cause. He believes he was fired because his ex-girlfriend went around talking about his criminal record, which according to him has happened many times before.
Although he does admit to having a criminal record, Estrada justifies how he was never asked for a criminal record check while joining the company. Two employees, who are female, were added as his friend on Facebook and they discovered that he had a criminal background including sexual assault and had left several jobs because of his criminal background.
The profile also contained graphic details of sexual assault which caused a concern to the female workers who worked with him. They informed the store manager of the content and he dismissed the employee without letting Estrada know why. The employees felt insecure being invited by him to view these images, which were used as the main reason why he was terminated.
The complainant did not involve in any inappropriate behavior during his employment in or outside of the workplace. In addition, the complainant says that he had no knowledge about inviting his co-workers to view inappropriate content and had he understood the real reason behind his dismissal, he could have provided information to correct the misunderstanding. The respondent argued that the complainant was dismissed to protect the other employees (Estrada v. Clace Holdings and Smith, 2008). Analysis:
This case depicts a situation where it is hard to justify whether the employer or the employee is at fault. The employer has obviously not done his part in researching about the employee prior to employment and thus ended up dismissing him when inappropriate content was found on Facebook.
This should indicate to prospective candidates that inappropriate content may lead to security reasons at work and may end up having the employee dismissed, as in this case.
The unlawful part here is that the employee was dismissed without just cause. He was not explained the reason as to why he was being terminated. This is unlawful on the employer’s side as they have a duty to explain and give detailed justification of why they are dismissing an employee.
Another unlawful behavior from the employer’s part was that they had not carried out a criminal check for the employee especially knowing he would have to work with two female workers. This is also a mistake from the employer’s part as they had not carried out their recruitment process right. This case also shows the powerfulness of social media that can heavily impact our work.
Content that may flag as red signs to employers are always dangerous and threatening to the image of an employee. This case can be related back to the paper because it exemplifies how employers may use social media but actually end up reading too much into it. The complainant here suggests how if he had known of the real reason behind the dismissal, he could have cleared the misunderstanding.
As mentioned in this paper, employers may use social media information to wrongfully form biases about employees. So it is in the best interest of potential candidates to be careful in posting comments and pictures that may eventually have them fired.
Case #3: Social Networking Site for Youth, Nexopia Breached Canadian Privacy Law In this technology-filled world, potential candidates can get themselves into trouble by joining networking sites that do not protect their privacy and possibly making them vulnerable to employer’s screening.
Nexopia is an online networking site where teenagers and young-adults can vent about their lives and express themselves. Not being protected in such a site is potentially harmful to an individual’s career life as some statements may be seen as offensive to potential employers. Nexopia was found in violence of user privacy.
The complaint was made by individuals from Public Interest Advocacy Centre (PIAC) who offered them 24 different solutions of which 20 of them were agreed by Nexopia.
The company was not obtaining consent from users in keeping personal information and was sharing personal information for advertising purposes. They also failed in deleting de-activated users’ information without their knowledge and shared the information with a third-party. This is a potential hazard to candidates as they believe this to be a private and personal platform to express themselves feeling protected when in fact they are being publically exposed.
Users were being vulnerable to potential employers as it was founded that external search engines could be used to obtain direct access to users’ information. In addition to this, visitors to the website were able to fully see users’ comments which were breaching privacy of users who were in there for the sole reason of being protected from and judged by the public.
After filing the complaint, Nexopia agreed in submitting a progress report to PIAC regularly (Social networking site for youth, Nexopia, breached Canadian privacy law, 2012). Analysis:
This case can be used to help make employers understand the potential risks involved in using internet as a screening tool when hiring. These maybe personal information of users’ that would not be relevant to any job qualification. Understanding personal characteristics and feelings may add to an employer denying an application as they may feel the candidate has emotional issues.
This is a great example of how employers may run into legal problems when hiring through the utilization of social networking. Not only does this reveal deep and personal information about the candidate, but it also allows for the employer to form a perception about the candidate that would have negative consequences.
Case #4: Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation This case explores how Kaplan discriminated black candidates by checking on their credit history and not letting them be eligible for work.
A federal judge in Ohio dismissed the case granting partial summary for the case. Black applicants who were falling behind on paying their bills would create a disparate effect on the potential employer because it directly affected their future job performance.
The defendant, Kaplan, suggested that it was their practice to do such credit checks. Their request to dismiss the case was granted by the court (Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation, 2011). Analysis
This case is yet another example where the argument could go either way but at the same time portrays how discrimination may occur not just through Facebook comments but through any online tracking possible. Kaplan was trying to hire the best potential candidates but discriminating people (especially black people) based on their poor credit history.
This is a form of discrimination under the Privacy Act as well Human Rights Code. An applicant’s privacy of their own credit history is now known by a strange employer. This violates personal information of the candidate. It is also a form of discrimination as potential candidates were mainly denied on the basis of their poor credit check which is a form of judgement on their status.