Reviewing Private Social Media Accounts as a Candidate Screening Tool: Dangerous, even with Policies & Procedures

TOO MUCH INFORMATION!

By now you will have heard that some employers are (1) asking job candidates to provide their private social media log-in information, or (2) asking job candidates to log-in during an interview so that the interviewer can browse through their account during the interview.  Still more employers are simply scouring the internet looking for information on candidates, sometimes striking gold from less than savvy people that have not yet figured out how to restrict public viewing of their social media accounts.  It seems that more and more employers are saying to their hiring managers “get me everything on this candidate”.  However, as discussed below, they should be careful what they ask for!  For most jobs “everything” is too much.

As of April 2012, these practices are still legal in the United States of America, although a few jurisdictions are close to passing laws prohibiting it (UPDATE: As of August 2012 Illinois & Maryland bar employers from requesting social media passwords from candidates).  Contrary to popular belief, unless a government employer is involved, there is no Constitutional “right to privacy” that is involved.  However, there are other significant areas of potential legal liability for employers, depending on the nature of the information that they discover, and what they do with it.  This too, you will no doubt have heard by now, because from what I see, most reputable employment lawyers have been issuing this warning.  What all the fuss is about is that considering certain information discovered by reviewing social media accounts, such as medical history, certain political views or activity, sexual orientation, religious views, etc., can be in violation of the law as it relates to protected classifications under employment laws.  For the purpose of this post, I will refer to such information as “protected” information because under existing law it should not be considered in making employment decisions.  It is worth noting that Facebook says that employers engaging in this practice are requiring its members to violate Facebook’s privacy policy and may expose themselves to “unanticipated legal liability”.

However, since the practice of reviewing social media accounts remains lawful, meaning companies will no doubt continue to mine candidates’ social media accounts, the focus may be shifting to trying to find ways of minimizing liability when doing so.   The fine folks at The Recruiters Lounge (www.therecruiterslounge.com) recently posted a blog entry on their website with some advice on ways to do precisely this.  And while I think the advice is useful, and timely, I am still left wondering whether (1) you can truly block out all of the “protected” information that you discover, and (2) whether employers even need this additional tool, considering the risks of using it?

Carefully Playing with Live Bombs is Not Much Different from Playing with Live Bombs

The Recruiter’s Lounge blog post is entitled “How to Avoid Discrimination When Using Social Media Tools in Your Hiring Process “ and was written by Dave Dart, the Managing Partner of the Morisey-Dart Group, an executive recruitment firm.  Some of his advice in the article is that you should: (1) establish a well-defined policy against using social media to discriminate when in the search or screen process for new job candidates; (2) Train your company’s HR staff, hiring managers, or any other employees involved in searching for and screening job candidates, and; (3) Monitor your staff’s use of social media tools for screening purposes and  develop a procedure that dictates where, how, and what to look for when conducting an information search on social media sites in the hiring process in order to demonstrate consistency in your company’s screening activities and help alleviate a lot of room for error.    All points seem reasonable enough, under the circumstances.  I mean, to the extent that you are going to do something risky, you should probably set some guidelines to avoid as much risk as possible.  Still, I just wonder how effective such a policy is in practice.

What 800 Pound Gorilla in the Room?

You know that feeling you get when you ask someone a fairly innocuous question, but their answer yields embarrassing and/or disturbing facts about their personal life?  If your answer is “no”, then count yourself lucky.  For the rest of us, it’s that moment when you instinctively blurt out the now well-known phrase “too much information!”, as in you REALLY  didn’t want or need to hear any of that!  After that, no matter how hard you try, you cannot manage to erase the disturbing images conjured up by the person’s story.  It is as if it were somehow etched into your mind.  You don’t want to think about it, but after being exposed to it, you simply cannot get it out of your mind.  There’s simply no going back.

Another similar experience that comes to mind is the “limiting instruction” judges sometimes give to jurors when they do not want them to consider certain potentially prejudicial information that was presented to the jury in error.  They are told to simply not consider the information, as if they never heard it at all.  While it may be possible for them to block it out of their minds, most lawyers I know are not persuaded that such limiting instructions actually work.  Indeed, a number of studies have shown that they do not work.  For these reasons I question whether it is at all possible to review candidate social media accounts responsibly, in a manner that will not pose legal problems for the employer.

The basic issue I’m getting at is whether your hiring manager can persuade a judge or jury that while they saw the protected information, they were nevertheless able to completely disregard it so that it played no role in the decision not hire the candidate.  Instinctively, for the reasons mentioned above, most people won’t buy that.  If the candidates were otherwise comparable but for the protected information, you may have a hard time convincing a jury that the decision to reject one of them over the other had nothing to do with the candidate’s membership in or affiliation with, a protected classification that you discovered from their social media account.   This is why I do not discount the usefulness of Mr. Dart’s advice.  You see, if you insist on screening candidates with the aid of social media tools, and you are sued by a rejected candidate, having a policy, trained staff, and monitoring protocols, may be enough to persuade a jury that you indeed did not consider the protected information in deciding not to hire the candidate.  I have my doubts that it would work, but at that point, what else would you have that can help you persuade a jury?

Don’t Need it.  Not Worth it.

Ultimately though, the fear is that a jury will think that regardless of anyone’s best attempts not to consider the candidate’s protected information, they simply couldn’t help but to consider it.  It’s human nature, if you will.  In which case you lose the lawsuit, and face potentially significant damages.   It would be then, in hind-sight that you would wonder why you ever thought the risk was worth it.  With references, background and credit checks, drug screening, psychological testing, and all sorts of interview techniques, you already have enough tools to properly screen candidates.  What more do you really need?  In addition, as more candidates come to expect employers to ask to see their social media content, they will simply establish sanitized “fake” accounts for just such occasions.  Reviewing those will be a waste of your time.  Sadly, it will not be clear to you that the accounts are fake, thus guaranteeing that you will waste your time looking through them.  Lastly, as the economy turns around and hiring becomes more competitive, who will want to interview for, and work at, a creepy company that insists on digging through their private social media accounts?  All in all, it looks like a policy that has legal risks, questionable value, and will soon be illegal in a number of jurisdictions.  So why bother with it?  My recommendation is not to.

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