Facebook Fail: The Social Media Recruiting Laws You’re Probably Violating

Many companies routinely turn to social media to find and screen job applicants as part of the hiring process. But to reduce the potential for job bias, HR managers need to plan how and when social media will be used in the hiring process, as well as understand how such information should be retained.

Social Media Recruiting

For employers, social media profiles provide a treasure trove of information about job applicants—legitimate, job-related information and other information that is not offered or asked for in the traditional application process.

For example, social media profiles often readily allow visitors to determine certain demographic information about a user. But such information like race, color, religion, sex, national origin, age, disability, pregnancy status, and genetic information may otherwise be protected by federal law.

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And unlawful bias by employers using social media in the hiring process has been shown. In a 2015 study by Alessandro Acquisti and Christina Fong it was revealed that social media disclosure of certain personal traits influence the hiring decisions.

In fact, the study found that fake candidates whose public Facebook profiles indicated they were Muslim were less likely to be called for interviews than Christian applicants. In some instances, Christian applicants got callbacks 17% of the time, compared with about 2% for Muslims.

Why Using Social Media to Screen Job Applicants Matters

First, HR professionals need to carefully consider how social media is used in the hiring process to avoid learning too much about an applicant. In accessing an applicant’s social media profile, there is the risk of potentially waiving a future argument that the employer was not aware of an applicant’s protected status. This leaves the employer in a position of having to respond to an unlawful job bias claim by proving a negative, i.e.: they did not consider the applicant’s protected status.

Second, using social media in the hiring process means managers and HR professionals must understand the applicable record keeping obligations.

For example, under federal law, employers are required to keep records concerning hiring decisions for a period of at least one year from the date of the hiring decision or the date the record was created, whichever is later. Records of social media searches could trigger an employer’s record keeping obligations depending on how the information is used.

What Employers Can Do to Minimize Social Media Hiring Risks

One approach to avoiding potential unlawful bias claims is to consider having individuals outside the hiring process review a candidate’s social media profiles. As part of the review process, all information of protected categories (age, race, religion, etc.) is eliminated so that a “sterilized” report is eventually provided to the actual decision-maker. Thus, the employer could argue against an unsuccessful applicant that the employer’s hiring decision was based on protected information from the applicant’s social media profiles.

Third-party services may also be considered to screen social media information to counteract bias in the job application process. For example, NPR recently interviewed Stephanie Lampkin, founder, and CEO of Blendoor, about her company’s application that prevents bias in the job application process by screening out certain demographic information of an applicant until the interview stage.


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So the publically available information is off limits? What method do you use to maintain records? Print the profile info? Are you a valid third party option to assist companies in job applicant searches?