In today’s world of non-stop social media, it may be tempting for an employer to do a quick search of an applicant’s name on Facebook. In less than 10 seconds, the employer can obtain access to an applicant’s photos and personal information, and likely, gain a decent understanding of his or her interests, priorities, and personality. However, employers should exercise caution before reviewing applicants’ social media profiles. Such a review is an informal background check and is accompanied by a variety of risks. For example, employers may inadvertently obtain information about an applicant’s race, religion, age, sexual orientation, disability, and/or a pregnancy, etc. based on a social media comment or photo. If the employer uses this information in connection with a hiring decision or is perceived to have used this information in connection with a hiring decision, the employee may file a discrimination claim. The Illinois Human Rights Act and Title VII of the Civil Rights Act of 1964 protect against unlawful discrimination against a person based on a protected characteristic, such as race, religion, national origin, marital status, disability, military status, sexual orientation, pregnancy.
Further, the Illinois Right to Privacy in the Workplace Act makes it unlawful for an employer to refuse to hire an individual based on his or her use of “lawful products off the premises of the employer during nonworking hours.” Thus, an employee is, for example, protected in his or her consumption of alcohol or tobacco off the clock and should not be passed over by an employer solely based on evidence of these activities. In addition to a possible discrimination claim, employers risk a disparate impact claim based on a review of applicants’ social media if there is evidence that the employer systemically refused to hire applicants with a certain protected characteristic. Finally, aside from concerns about claims, a review of social media may result in an employer relying on incorrect information and passing over a perfectly good candidate based on a wrong assumption.
Conversely, with such a wealth of information about candidates and employees at an employer’s finger tips, not reviewing public, easily accessible information could lead to a negligent hiring or negligent retention claim. Thus, employers should educate themselves about the risks and document a process based on the below best practices.
We recommend that an employer craft a policy which designates a social media reviewer who is separate from the hiring decision maker. The reviewer should only bring public information that is job-related to the decision maker’s attention, redacting any protected and/or non-relevant information. If an employer decides to review social media for one applicant, it should do so for all applicants and retain the records of each and every review. Employers should be consistent in what sites are reviewed. Policies should address social media reviewing criteria and employers should have pre-defined job descriptions that the reviewer references when determining whether social media content is potentially job-related. We advise that employers interview candidates first before conducting a social media check. Finally, be cautious about engaging a third party in connection with a social media review, as this may implicate Fair Credit Reporting Act requirements and necessitate applicant consent.
Please contact us with any questions about this rapidly evolving, complex area of law.
Maryjo Pirages is an associate attorney of the firm and a member of the Employment & Labor Law, Trusts & Estates, and Corporate & Business Groups. Maryjo counsels and represents employers in a range of employment matters, including statutory and administrative regulations compliance, contracts, and employee handbooks and policies. Maryjo’s goal is to work hand-in-hand with employers so that they may proactively implement and stay up-to-date with their policies in order to limit their liability and exposure. Additionally, she assists individuals and families in their estate planning and administration.