Yesterday, we noted that because of anti-discrimination and credit reporting laws, when it comes to using social media to gain intel on prospective employees, HR professionals cannot just act like kids in the candy store. Why, they can’t even act like kids in the candy aisle at the grocery, because there are even more legal risks to consider.
Employers should be concerned about several other types of legal theories when using social media to make hiring decisions, explained Attorney Daniel Schwartz of Pullman & Comley in Hartford, Conn., in Thompson Publishing Group’s Think Before You Click: Strategies for Managing Social Media in the Workplace.
The ‘Negligent Hiring’ Theory
An employer is liable for negligent hiring when it knows or should have known that an employee has a propensity for certain conduct, at the time of hiring. Notably, employers are not required to use certain types of hiring procedures.
But if facts are revealed that would lead a reasonably prudent person to investigate an applicant further, an employer must be exposed to a negligent hiring claim. An employer that uses the Internet to search social media sites or conduct other types of checks into an applicant’s background is more likely to be held to a higher standard than an employer that does not, according to Schwartz.
That said, is an employer engaged in “negligent hiring” when it fails to conduct an Internet search on a candidate that would have easily revealed the offensive information? If an applicant “likes” the “I hate women” group on Facebook, and that person later engages in sexual harassment, could the employer be held liable under a negligent hiring theory? This is a question that has yet to be answered by the courts, Schwartz added.
Employee First Amendment Rights
Schwartz noted that another concern, particularly for public employers, is the First Amendment rights of an employee. The First Amendment protects public employees and applicants who have exercised their rights to free speech in non-work related situations.
Some states have applied the First Amendment to the private employer context. Thus, suppose a search of a candidate’s Facebook page reveals a link to a letter to the editor the applicant wrote on the need for employers to improve compliance with various provisions of the Family and Medical Leave Act, leading the employer to think that the applicant is a potential trouble-maker. Arguably, however, that speech — which relates to a matter of public concern unrelated to the job — might be protected, meaning the employer is now technically prohibited from making a decision based on the one item that gives it the most concern, according to Schwartz.
He did note one caveat: Refusal-to-hire cases are notoriously difficult to prove and are often times not prosecuted by denied applicants. Thus, there may be times when an employer uses a prohibited characteristic in making its hiring decision without repercussions. For employers, however, this is a risky — and inadvisable — course to follow, particularly because it lends itself to class actions, he cautioned.
Privacy laws have yet to be applied in any meaningful fashion to employers in this context, Schwartz noted. That said, employers could find themselves in a bit of hot water should they try to access an applicant’s Facebook page improperly. For example, if an employer attempted to circumvent an applicant’s privacy settings by “friending” the applicant, or viewed an applicant’s page through an existing friend, the applicant could allege a privacy law violation. Schwartz noted that whether he or she would be successful is another question altogether.
‘Off-duty’ Conduct Statutes
Another type of laws that may apply are so-called “off-duty” conduct statutes. In nearly 20 states, these laws prohibit employers from using an employee’s legal recreational activity outside work hours in a hiring decision. In still other states, for example, an employer may be prohibited from using an employee’s smoking habits in the hiring process. In both of these instances, Schwartz explained an employer that views the social media of an applicant is likely to run across the information — and may not use it to form its decision.
Does this means using social media as a hiring tool is more trouble than it’s worth? Not at all. In fact, Schwartz and other legal experts explain in Think Before You Click how employers can best manage this type of risk, and come up with effective social media policies.