As Comedy Central is discovering with the new host of The Daily Show, Trevor Noah, failure to fully vet an employee’s social media activity can have unexpected consequences. At the same time, an employee’s social media profiles can yield information that may be harmful to employers in the hiring process. There are potential pitfalls to examining an applicant’s social media profiles both too closely and not closely enough, and the lines are difficult to discern.
From the outset, employers should be wary of discovering information about candidates through their social media profiles that might form the basis for employment discrimination in the hiring process. This information can ultimately have legal repercussions with regard to antidiscrimination laws at the local, state and federal levels. For instance, an applicant in Neiman v. Grange Mutual Casualty Co. overcame a potential employer’s motion to dismiss in an age discrimination suit by noting that his college graduation year was visible on his LinkedIn profile. The court in that case agreed that the knowledge of the applicant’s date of college graduation was enough to put the employer on notice of the applicant’s age. The potential for such liability should prompt employers to review just how they use social media in the hiring process.
Even with the potential for liability, however, social media still has benefits for employers in the hiring and vetting process. As noted at the outset, Comedy Central could have vetted the public comments of Trevor Noah via social media such as Twitter to determine how his public demeanor might affect his tenure as the host of The Daily Show. Public social media contributions by applicants can give employers a sense of an applicant’s maturity, demeanor and overall personality to determine whether that candidate is a good fit with company culture. This information can also help a company determine whether a candidate will serve as a competent public representative in the digital realm.
With such significant risks and equally significant rewards, how can an employer vet an applicant through social media in a safe and effective manner?
First, an employer should create a formal policy concerning social media vetting and abide by it. The policy should cover what sites will be investigated in the hiring process, as well as the types of information that will be viewed and documented. Not all social media sites are equal, and employers should determine what types of social media best provide the targeted look at the applicant the employer needs, eschewing others. The policy should also require that all applicants are informed that their social media accounts will be vetted and to what extent.
Second, an employer should impose a firewall between the person conducting the social media search and the hiring decision-maker so that only non-discriminatory vetting information enters the hiring decision process. If this is not practical, an employer could hire a third party to conduct a search (this, however, triggers provisions of the Fair Credit Reporting Act and certain obligations of disclosure on the part of the employer).
Finally, counsel should review social media vetting policies in a regular fashion for compliance with EEOC regulations and evolving legal precedent. Social media is still expanding boundaries and blurring lines between work and life, and such rapid technological and regulatory evolution demands continuous and sophisticated monitoring.
The attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC, can help you craft well-drafted polices for social media investigations in applicant vetting, providing you with both a powerful decision-making tool as well as peace of mind in using it.
Brittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at email@example.com or at (859) 231-8780, ext. 300.
This article is intended as a summary of federal and state law and does not constitute legal advice.
 Neiman v. Grange Mutual Casualty Co., No. 11-3404 (C.D. Ill. April 26, 2012)