Social media succeeds because it connects people with personal information. That personal information is exactly why some employers want to delve into applicants’ and employee’s social media accounts. These informal social media background checks promise the kind of unfiltered view of a person’s character you just can’t get easily.
Or, does it? The fact that an applicant or employee has exposed information to public view—knowingly or unknowingly—does not automatically give you a right to use it. Undefined privacy rights aside, you should assume that the laws that are intended to ensure fairness in employment do apply. Personal traits that belong to a protected class under Title VII or have other legal protections should not be used in making employment decisions, no matter how you acquire them.
But the crucial difficulty is that you create a different and additional type of risk using social media. Once you have looked into the Pandora’s Box of someone’s Facebook account, you cannot easily prove that you did not see what is there. If you get into an adversarial position with that person, the fact that you know something you would not otherwise have asked about can be used against you.
In an earlier post about social media background checks, we said that once you ring the bell, you can’t un-ring it. The solution we proposed is still pertinent. A qualified third party background screening company is organized to maintain an arm’s length relationship between the employer and the applicant, and we know exactly how the law constrains the information we find and pass along. Employers should avoid the tempting social media background check.
Social Media Case Law is Evolving
The law is playing catch up to the explosion of social media, but it is definitely in play. The Cleveland Plain Dealer online ran a recent article about the increasing frequency of use of social media in legal investigations and lawsuits. It is clear that both plaintiffs and defendants are combing through social media accounts for evidence. Exactly how this will play out for employment law remains to be seen, but some early cases indicate that legal protections that work offline will work online as well.
One recent case in point concluded on appeal that Facebook “likes” are protected speech. In this case, a Sheriff running for re-election had fired employees who were supporting his rival, and at least two of them had “liked” the opponent’s Facebook page. There was no evidence the Sheriff actually saw the pages, but they were reported to him. Following some high profile testimony by Facebook lawyers who asserted that “liking” something was akin to endorsing it, the Fourth Circuit Court of Appeals agreed that “liking” something was protected free speech. The court wrote “…liking a political candidate’s campaign page communicates the user’s approval of the candidate…the Internet equivalent of displaying a political sign…”
As guidelines and case law evolve, the lesson to employers is clear: Be wary of using social media to make employment decisions. Be especially wary of “DIY” social media background checks.