Why Your Status Updates May Come Back to Haunt You

James Y. Wu

Before social media hit it big, embarrassing pictures and comments could be shared between friends without too much fear that the public would ever see or hear such material. But now, with Facebook, Twitter, LinkedIn, Google+ and other social media outlets, job applicants would be wise to tackle head-on issues of privacy controls and having embarrassing pictures or comments disclosed for public consumption.

This focus on the social media is particularly important for younger job applicants who may be unfamiliar with job hunting and the hiring process. Whether intentional or inadvertent, posting too much information (TMI) can prevent you from getting a summer job, or the dream job you always wanted. According to a study by CareerBuilder, 35% of employers decided not to extend a job offer to an applicant after reviewing the applicant’s social networking profile. Employers are not the only ones reviewing social networking profiles: Kaplan Test Prep released a new study reporting that 82% of people working in college admissions admitted to checking their applicants’ Facebook page.

Recently, Reppler, a social media monitoring service, surveyed 300 hiring professionals to learn if, when, and how hiring professionals are using social media to screen job applicants. The survey confirmed what we all have assumed for some time, that recruiters and hiring managers research job applicants’ social media activity. Specifically, according to the survey, 91% of the recruiters and hiring managers stated they have used social networking sites to screen prospective employees.

First, the good news:

Using social media can benefit job seekers. The Reppler survey revealed that 68% of hiring managers reported hiring employees due to information gleaned from an applicant’s social networking profile. Some of the information that helped job applicants include: providing a positive impression of their personality and organizational fit (39%); having a profile that supported their professional qualifications (36%); having a profile showing the candidate’s creativity (36%); and having good references posted by others (34%).

Now, the bad news:

More importantly, 69% of these recruiters and hiring managers revealed that they have denied employment to job applicants due to something they found on an applicant’s social networking site. According to the Reppler survey, job applicants were rejected based on social networking activity because the applicant: lied about qualifications (13%); posted inappropriate photos (11%); posted inappropriate comments (11%); posted negative comments about a previous employer (11%); made discriminatory remarks (10%); posted comments about drug use (10%); posted comments about alcohol consumption (9%); and shared confidential information from a previous employer (7%).

Some employers have gone much further than just simple web surfing to research job candidates. Some have started to ask job applicants to provide the company with their Facebook username and password, and/or to require applicants to login to their Facebook accounts during an in-person interview. To address this trend, some states have introduced legislation that could become law in the near future. For example, here in California, on March 27, 2012 Senator Leland Yee, D-San Francisco, introduced the “Social Media Privacy Act” (SB 1349) to the legislature [1]. Senator Yee’s proposal would add new sections to the California Labor Code and Education Code prohibiting private and public colleges, universities, and employers from “requiring, or formally requesting in writing, a student or an employee, or a prospective student or employee, to disclose the user name or account password for a personal social media account, or to otherwise provide the institution or employer with access to any content of that account.” While this piece of legislation is a bit too simple, and will likely need to be refined, California joins a few other states, and some U.S. Senators, who are hoping to move the law to catch up with technology.

Be proactive when managing your online presence

In the meantime, before any such laws are passed, you should proactively manage your online identity. In a practical sense, job seekers should rely only upon themselves to make sure their online profiles result in job offers and not job rejections. Everyone who has an online presence should be sure to set privacy settings appropriately so that potentially embarrassing photos, comments, or other information are not generally available to the public. In addition, take the initiative to manage the content on your profile or “wall.” A stray comment by a “friend” about how fun it was drinking with you the other night, or how great it was to play hooky from school or work with you, could doom your job prospects.

Thus, also make sure to set up your alerts so that you are notified of when someone is talking about you, or has tagged you in a photo. Also, do not be afraid to delete comments and photos that you would not want your boss, or a parent, to see. Your friends should understand why you may have chosen to delete such material. Additionally, take care in who you are “friending” – it is usually not a good idea to become Facebook friends with your supervisor, teacher or even a co-worker (because that co-worker could have “friended” your supervisor). Finally, be careful what you “like,” what applications you use on social media, and to what you have “subscriptions”. You never know if your call for help in “Mafia Wars,” or if your “like” of “Burning Man” will be a turn-off for your potential employer.

What legal protection do job seekers have?

The Federal Trade Commission (FTC) has taken some steps to protect individuals faced with an employer or potential employer who rely on consumer reporting agencies (companies who sell background reports). Generally, under the Fair Credit Reporting Act (FCRA), such consumer reporting agencies must take reasonable steps to ensure maximum accuracy of the information in their reports. Employers, too, face specific requirements under the FCRA. For example, employers must provide to the job applicant/employee a disclosure that a consumer report/background check will be performed, and the employer should obtain the individual’s authorization to proceed with the check. Furthermore, the employer must provide notice to the individual if they will take adverse action (not hire the individual, for example), before the employer takes that action. The FCRA also requires an employer to provide a post-adverse action notice as well.

Last summer, the FTC investigated and approved methods used by Social Intelligence Corp., a background check company that screens job applicants based on their Internet photos and postings. Whatever information Social Intelligence Corp. finds on a job applicant, it keeps in its files for seven years. According to Social Intelligence Corp., the discovered information is stored but not automatically provided to future potential employers. For example, if the applicant deletes Internet postings before another employer requests a background check, Social Intelligence, Corp. does not provide the “old” information it has stored. Instead, it provides the newer results, thus confirming the need for everyone to diligently manage online profiles.

Importantly, the FCRA requirements do not apply to employers who perform their own background checks without using a consumer reporting agency to obtain the information. Thus, for example, if the employer’s own human resources personnel, or if the hiring manager, performs social media research on a job applicant, the FCRA does not apply to those actions. And, of course, there are smartphone applications for this type of research. The FTC warned a few of the companies providing these smartphone applications, but the FTC has not yet determined that an employer’s use of these smartphone applications are subject to the FCRA.

Employers should beware too!

In general, employers should think twice, and consult an attorney, before establishing a practice of requiring employees and applicants to turn over login information. And, though the law is evolving in this specific area, employers should understand that such a practice might result in the company losing talented employees and/or potential employees.

In addition, employers should also pay attention to the FCRA, and privacy and ant-discrimination laws. For years, employers have been counseled to not invade employee privacy, to not base any employment decisions on protected characteristics, and to avoid unlawful questions during the hiring process. Now, with so many employers conducting pre-employment research on job applicant’s social profiles, employers may be opening themselves up to discrimination claims. By reviewing social networking profiles and information, employers are learning about job applicants’ religious beliefs, marital status, family relationships, race, ethnicity, medical conditions, and other information that cannot be used to make an employment-based decision. As a result, employers must take care when performing such research. One practical method is to only allow someone who is not involved in the hiring of the specific position to be the person who conducts the social media background check. Then, when completed, that person can summarize the job-related information that may be helpful in considering the applicant, and can make no mention of the “protected” information (race, religion, medical condition, etc.) that would otherwise get the employer into trouble. This way, the hiring manager, or ultimate decision-maker receives only the job-related information.

Social media is here to stay, and job applicants should be mindful of how their own web identities may be sabotaging their attempts to get the next dream job. Additionally, social media can be used to benefit a job applicant, and thus, should not be ignored altogether. Furthermore, while we wait for the law to catch up with technology and these evolving issues, employers should be careful to conduct such background searches in compliance with the FCRA, and equal opportunity laws prohibiting discrimination.

For over 15 years, James Y. Wu has focused his practice on employment law and HR issues. James continues to provide day-to-day counseling and strategic litigation services to both employers and employees. James is a member of the CCCBA Board of Directors, and in 2008, James was the president of the Employment Law Section of the CCCBA and served on that Board from 2007 to 2012. Please contact James at james@jameswulaw.com and www.jameswulaw.com.

[1] Senator Yee previously introduced SB 1349 in February 24, 2012. That version of SB 1349 focused on child abuse reporting. In March 2012, Senator Yee amended SB 1349 to focus on social media. The text of SB 1349 can be found here: www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1301-1350/sb_1349_bill_20120327_amended_sen_v98.html .

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