Avoid the pitfalls of social media: The FCRA and EEOC angle
Social media has changed the way people communicate and interact and will continue to do so. Most employment laws were written before the social media era, and courts have struggled to shoehorn social media communications into existing definitions.
THE LAW: Because social media affects compliance with many different laws, we will focus on the Fair Credit Reporting Act (FCRA) and those laws the EEOC enforces: Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the ADA and the Genetic Information Nondiscrimination Act (GINA).
WHAT’S NEW: Social media in all its forms has infiltrated personal lives and the workplace. The reaction from employers has been uneven.
Some have embraced the technology as a way to improve workplace morale, encourage collaboration and augment company recruiting and hiring. Others have attempted to restrict employee social media comments and exploited the glimpse into applicants’ and employees’ personal lives for less honorable and possibly discriminatory reasons.
HOW TO COMPLY: Savvy employers use social media to enhance their recruiting and hiring processes. For example, combing through professional social media sites such as LinkedIn may help identify job potential candidates. Employers may even use social media sites as portals for job applications.
However, employers must be wise consumers of social media information. For example, information regarding an applicant’s membership in a protected class cannot factor into the hiring decision.
FCRA requirements
Employers may not view social media the same way they view a credit reporting agency, but depending on how employers use social media, courts may.
For example, third-party companies that perform social media searches and redact all information related to the individual’s membership in a protected class are in fact credit reporting agencies for FCRA purposes.
As a result, the law requires employers to obtain an applicant’s signed authorization to obtain information. It should include a statement explaining that should the employer reject an applicant based on adverse information obtained from these companies, it must disclose the information used and its source. The applicant then has the right to challenge or explain the adverse information before a final determination is made.
Some employers will maintain that many social media sites do not meet the FCRA’s definition of a credit reporting agency and therefore the employer is not required to obtain an authorization or disclose the adverse information’s origin. Don’t bet on every court coming to the same conclusion.
It is better to err on the side of caution by always obtaining the authorization and allowing the applicant to know the source of any adverse information and have the ability to challenge it.
In-house screening
Social media profiles can be processed in-house as well. The best approach is to have a person in HR who will not be involved in the hiring decision perform the search and redact protected-class information before forwarding the information to the decision-makers.
Gauging influence, risking bias
Using a “social media influence” or Klout score may open an employer to liability by disparately impacting older workers. This score could be relevant for certain positions such as a social media manager. Like any hiring criterion, the score must be related to one or more of the job’s essential functions.
Disqualification by association
Every type of social media relies on networks. Any investigation should focus on the statements and behavior of the applicant, not his or her relatives, friends and associates.
Employers may not assume the applicant possesses the characteristics of those in his network. For example, someone with disabled friends or family may not be disabled, or may have a disability that does not impair the ability to perform the job being applied for. The ADA specifically prohibits discriminating against an applicant or employee because of the person’s association with a disabled person.
On the other hand, discovering violent or racist rants online or indications that the person is spending too much time on social media and not enough time on work are legitimate reasons to deny the applicant the job.
Get the right person
Mining personal information about the wrong person wastes time and potentially exposes the employer to liability. Compare more than just the name. For example, most Facebook and LinkedIn profiles provide an educational and employment background. If the information does not match the résumé, have a conversation to resolve the conflict.
Finally, use social media in an evenhanded manner. Each application should be processed in the same way and the same criteria applied to each applicant in order to avoid potential liability.
