Study Shows Risks of Using Social Media in Hiring

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By Betty Wang, JD on November 26, 2013 7:53 AM

How many employers these days are using social media in hiring? And how many realize just how legally risky that can be?

A Carnegie Mellon study recently revealed that between one-tenth and one-third of U.S. firms search social media sites for information about applicants during the hiring process, Inside Counsel reports.

But the study also went a step further, revealing how employers can open themselves to liability by perusing applicants' social media profiles. Here's what researchers found:

Many Employers Not Deterred By Legal Risks

Researchers sent out more than 4,000 resumes, each with one of four made-up male names, to private firms of 15 or more employees across the country. Each of the names corresponded with a specially created Facebook profile tied to that name; those profiles made reference to a certain type of lifestyle that could be construed as Christian, Muslim, gay, or straight.

The result: The fake candidates whose Facebook profiles indicated a Muslim affiliation were far less likely to receive follow-up calls (just 2 percent did) than those who were identified as Christian (17 percent of whom were called back), Inside Counsel reports. Sexual orientation did not seem to make a difference.

The lesson here: It isn't the use of social media in the hiring process that's illegal, but rather the fact that these employers seemed to have based their hiring decision on information pulled from Facebook -- religion, in this case. Title VII of the Civil Rights Act generally bars an employer from making hiring decisions on the basis of race, national origin, gender, or religion. To do so would put the employer at risk of an employment discrimination lawsuit.

How to Keep Your Hiring Process Legal

So what can small business owners do to keep their hiring process within legal limits? Here are some tips:

  • Don't ask for social media passwords. Keep in mind that some states, like California, have laws that specifically prohibit employers from requiring applicants divulge their social media passwords. You'll want to check your state's laws about this.
  • Know what you are entitled to know. Even if a candidate's public profile reveals certain types of information, know that there are certain things (like one's religion) that you aren't generally allowed to base your decision on. Try to stick to considering the qualifications listed in your job description.
  • Know what you're not allowed to ask. While many small business owners like to keep the interview process informal, remember there are certain topics you shouldn't bring up during a job interview.

Have more legal questions about using social media in hiring? You may want to ask an experienced employment attorney near you.

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