While social media is generally public for all to see, employers need to be cautious about taking that information into account when making decisions about employment.
Have you wondered about using social media for hiring in California?
Though it’s been found that a full 70% of employers check out their current employees on social media pages, checking out a potential employee draws a lower percentage – probably because it comes with a few risks. If you’re trying to acquire more information about an individual by using social media before hiring, you should be aware of several possible dangers when conducting your own background checks.
Local City “Ban The Box” Ordinances
So what does Ban The Box mean and how does it relate to using social media for hiring? Ban the Box is the creation of international civil rights groups and advocates for ex-offenders. It was a campaign created to persuade employers to remove the check box from their hiring applications that asks if an applicant has a criminal record. This allows ex-offenders to display their qualifications in the hiring process before being asked about their criminal records. The premise of the campaign is that anything that makes it harder for ex-offenders to find a job makes it likelier that they will re-offend. Many cities such as Los Angeles and San Francisco have already passed ordinances that prevent employers from conducting criminal history checks on applicants and employees. The full list of states which have adopted the Ban The Box policy across the board in California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Indiana (2017), Kentucky (2017), Louisiana (2016), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Missouri (2016), Nebraska (2014), Nevada (2017), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oklahoma (2016), Oregon (2015), Pennsylvania (2017), Rhode Island (2013), Tennessee (2016), Utah (2017), Vermont (2015, 2016), Virginia (2015), and Wisconsin (2016). Nine states—Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont—have removed the conviction history question on job applications for private employers.
If you live in a state which has the Ban the Box policy in place, you may be gaining information through social media which this policy prohibits.
Federal and State Discrimination Claims
Employers in Orange County should be careful about using social media
If an employer learns about an applicant’s traits through their social media accounts, the employer cannot base hiring decisions on protected categories such as race or gender. Employers who discover any information about applicants through their online accounts would have to explain how the information did not impact their decision. This would put them in a tough spot, as it would be hard to prove, unequivocally, that an employer did indeed “forget” what he had learned on social media.
Invasion of Privacy Claims
In general, an employer has the right to monitor their employee’s use of the internet, during work hours, on company-owned computers.
On the other hand, federal law prohibits a prospective employer from discriminating against a potential employee by gathering hiring information from that employee’s social media pages with regards to race, color, national origin, gender, age, disability, and immigration or citizenship. When it comes to Invasion of Privacy claims, job applicants may argue that the employer overstepped legal bounds by using the information found on their profile in making employment decisions.
Taking it a step further, California specifically, has a statute that prohibits employers from interfering with employees’ private lives outside of work. The implications are obvious. If an employer has no say in an employee’s life outside of work, then that employer can certainly not hire on the premise of a prospective employee ceasing certain activities before being hired.
Fair Credit Reporting Act
Employees have specific rights when it comes to the Fair Credit Reporting Act
FCRA was enacted to ensure that decisions affecting credit, insurance, and employment along with some other things were based on fair, accurate, and relevant information. Under this act, employees are expected to receive notice of a background check, as well as authorization and disclosure releases. While most employers may not be subject to FCRA regulations if they conduct background checks internally, they should still be cautious of violating the California Investigative Consumer Reporting Agencies Act which is more restrictive.
Under the ICRAA, an employer cannot ask an outside agency to perform a background or credit check on an applicant or employee in California without first obtaining the individual’s consent. They must also give proper notice to the individual that the background check has been completed, giving the individual an opportunity to request a copy of the report. The employer’s notice must also be clear and conspicuous on a form that contains only the disclosure. A full listing of the details contained in the ICRAA can be found here;
https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf
Violating Terms of Service
Social media platforms have terms of service that prohibit the use of the content for “commercial purposes.” While it may not be a direct violation of the terms by an employer who views an applicant’s social media account for hiring purposes, it may open the door for a candidate to argue that there is an expectation of privacy for anyone who signs up for an account on that site.
Using Social Media for Hiring purposes in California?
If you’re thinking of using social media, you might want to click here!
Using social media for hiring purposes does come with some risks. Still, it is a tempting body of information that can be hard to ignore. If you want to use it to round out your perception of an individual, arrange to have a face-to-face meeting with the candidate first. This way you will have a sense of the person and their characteristics, and not be prone to making undesirable judgments based solely on the protected characteristics found in a personal account.
