Social Media Screenings: Things to Watch Out For – Part II

In more recent years, a growing number of employers have turned to social networking sites to vet their job candidates. On the surface, venturing out into the socialsphere to gather information on candidates might seem like fruitful exercise for most employers. But, there are a host of legal issues that surround such an undertaking. Part I of this post reviewed federal laws that impact how organizations can use social media for screening candidates. But there are also legal developments at the state level, along with other recent landmark rulings, that affect how employers should conduct social media screenings.

State Laws

Since the earlier part of this decade, state-level lawmakers have introduced legislation aimed at limiting employers’ use of social media for screening candidates. In April 2012, Maryland became the first state in the U.S. to pass a law that prohibits employers from asking current and prospective employees to provide their username and password to their personal social media accounts.

Prior to this law being passed, an increasing amount of employers were starting to feel comfortable asking candidates for the sign-in information to their individual social networking accounts. Employers were aiming to access information beyond the content that they could view on a given candidate’s public profile. The Maryland General Assembly decided to put a halt to this trend with the passage of Senate Bill 433 (S.B. 433)/House Bill (H.B. 964).

In September 2012, California helped to further advance the model for other states to follow by passing their own social media privacy bill. It added §980 to the California Labor Code, which provides protections to employees that are similar to those found in the Maryland law.

Yet, Labor Code §980 went beyond the stipulations of Maryland’s law in addressing this issue. It bans employers from retaliating against any employee or candidate who does not comply with a request to disclose their username or password.

However, California’s law does provide certain exceptions for employers to request login credentials from their employees. The law allows employers to require employees to give them this information when it pertains to accessing an employer-issued electronic device.

Since the passage of S.B. 433/H.B. 964, more than 20 states have passed laws that restrict employers from requiring their employees and candidates to provide login credentials. Some of these state laws also prohibit employers from accessing their employees’ or candidates’ social media accounts indirectly through a friend or third party.

A new Virginia law (H.B. 2081), which becomes effective on July 1, addresses scenarios in which employers inadvertently obtain their employees’ social media login credentials through their employer-issued electronic devices. The law prohibits employers from accessing their employees’ social media accounts under such circumstances.

Also, Virginia employers can no longer ask candidates to modify their contacts lists on social media sites and urge adding “an employee, supervisor, or administrator.”

What is more, Oregon is already amending its relatively recent social media law to further broaden the scope of its protections for employees. Earlier this month, Oregon Governor Kate Brown signed a bill (S.B. 185 A) that amended Oregon’s existing social media law (H.B. 2654 B) passed in 2013. The amendment prohibits employers from requiring employees or candidates to create or maintain social media accounts. The new measure will go into effect on January 1, 2016.

Each of these state laws addresses important issues that every employer should understand. These laws draw attention to certain distasteful practices that employers may consider when using social media to screen candidates. Employers need to consult the laws for each state where they hire new employees.

Sweet v. LinkedIn Corp.

Every employer should also be aware of the landmark Sweet v. LinkedIn Corp. ruling that recently occurred in a California federal court. In the case, four plaintiffs filed a class-action lawsuit against LinkedIn on behalf of themselves and all other LinkedIn members who had reports run on their professional backgrounds through LinkedIn’s subscription-based Reference Search service.

Their suit claimed that any potential employer could use Reference Search to “anonymously dig into the employment history of any LinkedIn member, and make hiring and firing decisions based upon the information they gather, without the knowledge of the member, and without any safeguards in place as to the accuracy of the information that the potential employer has obtained.”

The plaintiffs contended that by “providing consumer reports” through its Reference Search service, LinkedIn “is, and at all relevant times was” acting as a consumer reporting agency (CRA) as defined under the Fair Credit Reporting Act (FCRA). They alleged that LinkedIn had committed five violations of the FCRA, and had destroyed their chances of being hired for certain jobs.

But, the federal district court dismissed the claim. It stated that LinkedIn’s Reference Search reports do not fall under the FCRA’s definition of “consumer reports.” The court found that any information that LinkedIn shared with employers derived from the plaintiffs’ choosing to voluntarily provide such information online. The court further ruled that LinkedIn does not constitute a CRA as defined by the FCRA.

Even though the Sweet v. LinkedIn Corp. ruling turned out to be a temporary victory for employers, every employer should recognize that there is likely a spate of similar claims to come. At the moment, the courts have granted some latitude towards employers by determining that social media platform providers like LinkedIn do not classify as CRAs. But given the evolving nature of this issue, employers should put into place practices that keep their organizations compliant with the FCRA. Every employer should create a policy document that highlights these practices for conducting social media employment screening.

Creating a Social Media Policy

If you are an employer that uses social media as part of your candidate screening process, then instituting a policy around this practice can help to further safeguard your organization.

Prior to drafting a social media policy, you should delve into the details of the FCRA. It provides helpful guidelines for CRAs and obtainers/users of “consumer reports” to remain compliant with the FCRA. The conditions outlined in the FCRA will enable your organization to establish best practices for using social media that follow the law.

When creating a policy, you should also consult the U.S. Equal Employment Opportunity Commission’s (EEOC) Best Practices for Employers and Human Resources/EEO Professionals. And during this process, you should be mindful of federal labor laws, your own state’s labor laws and any relevant local ordinances. Your organization would be best served to hire a labor lawyer to help address these areas when creating a policy.

Moreover, you should consider these following suggestions for drafting and managing your policy:

• Explicitly delineate the nature and parameters of your social media screenings and what you will report.
• Avoid reporting any information that you cannot verify.
• Consistency is critical throughout the search and verifications process. Establish standards for your employees to follow that explain which platforms they can use and to what depth they can research a candidate’s account. Treat all of your candidates the same.
• Regularly update your policy to comply with changes in relevant federal, state and local laws. Make sure your policy reflects any updates with anti-discrimination law.

Whether your organization is vetting information in-house or using reports provided by a vendor, it is imperative that you have a social media policy in place. After implementing your policy, you will want to thoroughly train your staff in all of the practices that it covers. They should learn how to properly review and vet information that they find either on social media sites or in reports provided by a vendor.

Finally, every candidate needs to be aware of your policy at the outset of the hiring process.

Disclaimer Statement: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation.