I had an interesting conversation with Michelle Sherman yesterday after publishing my post on Poking the Soft Underbelly of Social Media. She writes on social media issues for a very insightful blog, Social Media Law Update, for a law firm. Her articles related to e-discovery and retention are particularly interesting.
The issue we were talking about was one I hadn't considered before and related to something we all do -- checking out a potential employee's presence on social media, especially Facebook -- before hiring. In fact, it's one of the things I warn my kids about -- be careful what you post, because it carries risks in how you will be viewed by a potential employer.
Well, Michelle made the point that all this checking around is not without risks to the EMPLOYER as well, which is something I had not thought about. In Social Media + Employment Decisions: May Be a Recipe for Litigation, she makes her case, and it's an interesting one.
It centers around the combination of all the prohibited topics that HR advises us to AVOID during the interview process -- age, sexual orientation, relationship status, etc. -- and the centrality and visibility of this information on Facebook.
Michelle starts here...
...it is estimated that 45% of companies research a job candidate on the Internet. In a December 2009 survey commissioned by Microsoft, 70 percent of the 275 U.S. recruiters, human resources professionals and hiring managers who responded said they have rejected candidates based on information found online. Thirty-five percent of those employers said they rejected applicants based on membership in certain groups.
You might be thinking, "what could possibly be wrong with finding public information that the job candidate has freely shared on the Internet?" "Having shared that information, the company should be able to ask him about it. After all, the job applicant is not making a secret of it."
So far, so good, that's how 99.9% of the people I know would approach this. But then she notes the following...and goes through a recent case in which an applicant charged discrimination based on the information reviewed by the prospective employer (University of Kentucky) on Facebook...
Now, step back and think for a moment. There are subjects that are considered off-limits for employers to ask job applicants about. Under federal law, Title VII of the Civil Rights Act prohibits discrimination when making employment-related decisions. A company cannot make hiring, discipline, and termination decisions based on any of the following protected factors: race, color, national origin, religion, and gender. The Age Discrimination in Employment Act (ADEA) adds to the list with a prohibition on discrimination against individuals who are 40 years or older. And, finally, the Americans With Disabilities Act of 1990 prohibits discrimination against "qualified disabled" individuals. Employment decisions are defined broadly and include promotion, demotion, compensation, and transfers.
Many states add additional areas that are off-limits for making employment decisions. For example, California also gives protected status to sexual orientation, marital status, pregnancy, cancer, political affiliation, genetic characteristics, and gender identity.
It is very easy to see how someone with a Facebook page may post about these protected factors. Thus, the challenge for employers who are researching job applicants, or monitoring the social media activity of their employees, is not to let this protected status information bleed into their employment decisions.