It has become common practice to consider your social media pages similar to a resume. I cannot recall how many times I have heard some of the biggest entrepreneur’s with massive social media followings explain that your individual social media page is equivalent to your brand, and be weary how you represent yourself. 

Employers are consistently viewing applicants and even current employees social media profiles, whether that be LinkedIn, Facebook, or Instagram, to gain insight on that person.  This is all well and good when you meet someone at a bar, but are there legal issues an employer must think about before Instagram stalking their next secretary?

Absolutely.  Let’s look at those issues now.

Protected Characteristics or Private Information:

Researching potential job candidates on the internet creates a risk that you as the employer will obtain information regarding individual characteristics about a person that would otherwise remain private until you actually brought that person in to interview.  This information includes things such as race, gender, age, religion, disabilities, and sexual orientation. All of those information is considered “protected” under multiple state and federal laws.

What knowing Private Information means for you the employer:

As a potential employer the use of any private information learned while screening a candidates social media profiles might lead to a violation of state or federal discrimination laws.  There are multiple laws that protect potential and current employees from discrimination.

-Title VII of the Civil Rights Act of 1964 which prohibits discrimination base don race, color, religion, sex, and national origin.

-Title I and V of the Americans with Disabilities act of 1990 or ADA, which prohibits discrimination in the workplace against qualified individuals that have disabilities in the private sector, and in state and local governments.

-The Age Discrimination in Employment Act of 1967, protects individuals that are 40 years or older from discrimination in the workplace.

As you can see, there are numerous federal laws that prevent employers from discriminating based on one of the above characteristics. All of the above is protected information. If you as the potential employer gain knowledge of any protected information prior to a face to face interview, and use it improperly in your hiring decision, you might have a discrimination lawsuit on your hands.

For example, lets say you are hiring for a front desk lead at your newly founded gym. You find each of the applicants online and begin to review their profiles. The frontrunner named, David, is currently in a wheelchair although his profile doesn’t state why. As the employer, if you take that into consideration when hiring you are in violation of the law. Although David might have a difficult time proving that this information was used negatively against him, it is not impossible, and therefore should be handled carefully.

Best Practices for Social Media use in the hiring process:

A great way to avoid violating any anti discrimination laws is to wait until after you interview a candidate before checking any of their social media profiles. However, you must still tread lightly and not use any protected information in making a hiring decision whether learned at the interview or via social media.

You can also hire outside companies to screen potential employee’s social media sites. You might give this company a list of attributes (non protected that is) you are seeking in a candidate and let them review each site for those attributes.

If a person already within your organization will do the searching, screen them from the hiring process. Do not allow that person to give an opinion, or make a decision in deciding to hire someone.

The information gathered from a potential employee’s social media must pertain to the job itself and not be protected. Things like educational background, and business experience are what you are looking for.

Ask for permission in the application process to review a candidates social media sites.

Ensure that as the employer proper records of what sites were accessed, when, and what information was gathered for employment records. This will help prove that information obtained was related to the business operations rather than any protected information of that candidate.

Develop a strong and sufficient process for use of social media in screening candidates to avoid gaining protected information during the hiring process.

There are other pitfalls of relying solely on social media to find and screen potential job candidates. Studies have shown that a less diverse group of people are most active on the most popular social media sites. This can lead to lack of diversity in your candidate pool. That said, never underestimate the traditional ways to find qualified, and hardworking candidates. Include social media in your hiring process. However, ensure a strong process is in place to keep protected information out of the hands of employers making any hiring decision.

If you’re a small business owner, a fitness entrepreneur, or online creative in the process of expanding your business and you have more employment law questions please contact us through the contact form on the website. Or, you can find us on Facebook and Instagram (no risk of discrimination here!) @ MontgomeryLawPllc

Please note that this is not meant to be legal advice for you or your situation, this is merely some legal research and knowledge on the given topic.