Online Recruitment

The legal risks of recruiting and screening potential employees on social media
Matt Johnson
July 23, 2019
COMMERCIAL, RETAIL, FABRICATION : LEGAL

Social media is a powerful recruiting tool. It is estimated that upwards of 80 percent of companies currently use social media platforms when recruiting prospective employees. While social media provides information and exposure for those looking to hire and those looking for jobs, the information can also present legal risks.

What are the risks?

Risks arise in both of the two primary ways social media is used in recruiting: posting and screening. Posting is when employers use web services or social media networks to invite applications for employment. Screening is using social media platforms when making the hiring decision itself. 

Both practices present the potential that social media information is used to discriminate or unfairly evaluate applicants. Each has been the subject of litigation directed at hiring practices within trade and construction companies. 

Posting. Posting claims arise most frequently because of the informality inherent to social media. Familiarity with a social media platform can lead to situations where improper questions are asked; for example, questions about medical conditions, race or gender, or improper information is demanded, such as passwords and site-access permissions. Also, where new positions are limited to online applicants only, claims regarding discrimination based on access to the Internet have also arisen, a point especially relevant to federal contractors and their applicant flow data reporting requirements. 

Screening. Screening claims arise when a person has been denied a position based on social media information that was improperly gathered or considered in the hiring process. The potential for generating improper biases based on social media content is problematic. Consideration of race, medical conditions, pregnancy or complaints about a prior employer should not weigh into the hiring decision. Of course, there are situations where social media presents evidence of poor judgment by a candidate that justifies not hiring, for example, posts about drug use or hateful content.

How can a company mitigate the risks?

Most employers recognize that social media must be used in the hiring process despite the risks. So, what are some practices to mitigate those risks?

Formalize a job-posting procedure. Not every opening requires this level of commitment and not every company requires this detail. However, a policy regarding high turnover positions that need to be regularly filled can help regulate the hiring practice and manage potentially sensitive areas like social media evaluations.

Post job openings beyond the Internet. Job fairs, local papers and industry publications offer resources for announcing open positions that can deflect later claims of potential hiring bias or limitations on applicant pools. Using these avenues also increases exposure to potential employees who simply might not regularly use social media or the web in general.

Keep records. Regardless of where these postings go, preserve and maintain a copy of what was published. Companies will want to confirm when “now hiring” advertisements went into the market, for how long and what was posted. Preserving the original social media or job posting can be crucial to a defense of improper hiring practices.

Maintain formality. Remember that the hiring practice itself should remain formal. Email and social media contacts can create real problem exchanges between existing staff and potential hires. I’ve written before how a good social media policy for existing employees can help set usage expectations and control market-facing interactions with the web. Including hiring practices and applicant-contacts within that policy can be a wise addition.

Screen with caution. If company managers use social media searches to evaluate applicants, they should be cautious. Remember that only postings that touch on job-critical factors are potentially worthy of consideration. Protected classifications or complaints about former employers cannot be considered. On the other hand, complaints about late shifts or quick deadlines might be properly considered if such are critical to the posted job criteria. 

Keep documents for screening decisions. If a social media post does impact the hiring decision, document why and how, and preserve the posting, even by printing it. Social media content is controlled by the user and frequently subject to revision. An adverse employment decision based on a properly considered post may appear less proper if the post is later amended or deleted. Preserving the post, and how it relates to the job criteria, can help defend against later claims.

Be consistent, fair and even. Social media presents an extremely valuable source of information. Knowing how, when and what to consider from these platforms is crucial. But ultimately these resources should be used as a company would use any normal hiring tool. Use social media as a means to find the best applicant by weighing potential performance on proper items like skills, culture fit and overhead. 

Matt Johnson is a member of The Gary Law Group, a Portland, Oregon-based firm specializing in legal and risk issues facing manufacturers of glazing products. He can be reached at matt@prgarylaw.com.