Privacy Paradox: Understanding Social Media Law

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Building service contractors who are looking to meld social media into their existing recruiting strategy need to be aware of the legal risks associated with using the medium to vet candidates. 

 

Although social media has given employers the ability to gather information about a candidate long before the first interview, Federal law prohibits employers from obtaining data considered “forbidden” — characteristics such as age, sex and race and more personal tidbits like sexuality, political affiliation or financial status — without the consent of the individual, even as much of this information is readily available on social media pages. 

 

“Because so much information is available online, employers sometimes access the prohibited types of information,” says Perry Heidecker, senior counsel at Milman Labuda Law Group, of Lake Success, N.Y. “They open themselves up to potential charges of discrimination if they take adverse employment or hiring actions.” 

 

Those who treat social profiles like an all-access pass could find themselves embroiled in a lawsuit, Heidecker says. 

 

The ease at which information can be obtained from social profiles has fueled a fierce debate over social media’s unique public-private landscape. Despite optional privacy settings offered by many of the networks, social profiles are often publicly accessible. Many people argue that information contained in these social profiles is “open-game,” especially because the content is user-generated. Others argue that information found online is an invasion of an individual’s reasonable expectation of privacy. 

 

This “privacy paradox” has presented several challenges for employers. While companies say they are combing profiles to gain insight into the personality and work habits of candidates, many employers have been charged with going beyond what is necessary to make those determinations. 

 

“Employers have to draw this balance,” says Stephen Wu, a law partner at Cooke, Kobrich and Wu LLP, in San Jose, Calif. As a general matter, it is considered bad practice to consider content unrelated to the position, including photos, videos and social posts. 

 

Legislation has been slow to follow social media’s vast influence, especially in the workplace. So far, six states — California, Delaware, Illinois, Maryland, Michigan and New Jersey — have passed laws banning employers from crossing specific boundaries, including demanding an employee’s or candidate’s username and/or password, and forcing individuals to log onto their social pages in the presence of an employer. 

 

While the laws aren’t yet comprehensive — none of the statutes address the extent of acceptable social media screening —the new laws imply the need for establishing social media privacy standards. 

 

“There is always a danger that employers will consider information that is simply irrelevant to employment issues,” Heidecker says. “Many employers err by taking online information at ‘face value.’”

 

To avoid legal issues, Heidecker and Wu suggest that employers move quickly to establish social media policies, including those that directly address hiring best practices. 

 

Beyond the policies, the lawyers advise employers to:

• Work with a labor counsel to develop a clear social media policy;
• Be consistent in the way the policy is applied; 
• Use someone without hiring authority to conduct profile screening;
• Collect any data gathered from social profiles. Determine how and where the information will be accessed and stored; 
• Document what information was used in the hiring decision. This will help an employer identify and defend the sources it used to make a hiring decision. 

Finally, employers must also be aware of “negligent hiring” charges — hiring a candidate despite flagrant conduct found on their social media pages. 

 

“If an employer fails to find information that a candidate is a ‘sexual predator’ and that person is hired and subsequently assaults a co-worker, there could be a liability,” Heidecker says.