From guest writer, Brian Lamoureux, Esq., Partner at Pannone Lopes Devereaux & West LLC

“Hi, Brian – Please see this tweet sent by someone we were just about to hire. I can comfortably state that we do not want to hire him because of this vulgar tweet. Can we decide not to hire him because of this?”

This is an actual question one of my clients emailed me recently. After confirming that the tweet did not suggest that the potential employee was part of a protected class, I told my client that they were free to pass this person over. This was not a very difficult decision. But, it shows that human resource professionals are struggling with how social media can (and should) be used to find, screen, and discipline employees.

In 2013, almost 40% of employers used social media to screen candidates, according to a CareerBuilder study. Interestingly, 43% of those employers found information on social media that disqualified candidates, whereas only 19% found information that influenced them to hire a candidate. This disparity in favor of disqualifying candidates suggests that employers and potential employees need to understand that social media poses risks for each of them.

For employees, the risks are obvious. We have all seen social media posts containing poor grammar, showing poor judgment, lack of discretion, laziness, or even criminal activity. Given that employers are using social media information more often to rule candidates “out” than to rule them “in,” candidates need to proceed extra cautiously when behaving online.

For employers, the risks are primarily legal in nature. Using social media to screen candidates can unintentionally provide information to employers about candidates that the employers could not get by asking the candidates. For example, a picture of a woman on Facebook with triplets in her arms suggests (but does not prove, of course) that she’s a mom with her hands full, and therefore perhaps unwilling to put in long hours. Or, a picture of a man in a wheelchair could suggest (but, again, does not prove) that he is disabled and would need reasonable but expensive accommodations. If the hiring manager sees these pictures and decides not to interview or hire either of these candidates, there is a risk that the candidates could make a discrimination claim.

Thus far in my practice, these issues have been largely theoretical, and none of my clients has faced a discrimination claim based upon these facts. Rather, most of my clients are struggling with how to handle information and pictures they find on social media that reflect legal, but objectionable, behavior. Generally, employers are free to consider any publicly available information about a candidate, so long as the information isn’t protected under discrimination laws or otherwise protected as legal, off-duty conduct.

By now, you are probably familiar with the oft-repeated advice on how to use social media to screen candidates, such as using a third-party screener, reviewing all candidates or none of the candidates (i.e., not cherry-picking, etc.). If you’re not familiar with these best practices, there are a lot of good articles online. I’d like to use the remainder of this article to introduce you to some new issues and concerns.

What do I mean by a “Brave Future World?” For years we have been dropping little social media “crumbs” about ourselves based upon things we’ve “liked,” places we’ve checked into, events for which we RSVP’d, pictures we’ve posted, Twitter debates we’ve engaged in, etc. These data points – standing by themselves – don’t tell much about us. But, when they are put together as a mosaic using complex algorithms, very accurate pictures can be painted about our health, sexual preferences, eating habits, social preferences, and financial security.

For example, if I never “check-in” to a gym, regularly “check-in” to fast food restaurants, “like” donut shops, bakeries, and breweries, can you reasonably assume that I’m someone who eats a lot of junk food, likes beer and doesn’t exercise? Perhaps. Wouldn’t a health insurer or potential employer (who self-funds their employees’ health insurance) want to know this information when setting premiums? Definitely.

Suppose that I often “check-in” to casinos and exclaim every two weeks on Facebook that “Thank goodness it’s payday!” Doesn’t this suggest that I might have some financial issues? If you’re looking to hire me to be in charge of a cash operation or in a sensitive financial position, this concern isn’t far-fetched. If I told you 20 years ago that your credit score would impact your car insurance premium, you wouldn’t believe it. But, we all know now that our credit scores are a very good predictor of our insurance risk.

It shouldn’t surprise you that some very smart people are honing algorithms to put together these data points in the hopes of marketing it to employers, schools, health insurers, and banks. Based upon my research and analysis of social media, “big data,” privacy, and how our information is being used, I predict that social media data about all of us will start to gain protection under the law (much like our medical information under HIPAA). I expect states and perhaps Congress to begin passing laws prohibiting discrimination on pricing for healthcare, lending, and insurance based on social media data. However, until that protection is put in place, all of us should pause and be mindful of the personal data we’re putting out on social media and how employers are using it to make decisions.

Brian Lamoureux, Esq. is a Partner at Pannone Lopes Devereaux & West LLC in Providence, Rhode Island. He focuses on employment law, commercial litigation and disputes, social media law, and creditors’ rights. He is also an Adjunct Assistant Professor of Business Law at Providence College, where he also teaches a graduate-level course he designed called “Digital and Social Media in the Business Environment.” He can be reached at 401-824-5100, bjl@pldw.com, or on Twitter @brianattorney.

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