September 8, 2017

Can’t We Just Be (Facebook) Friends? The Unexpected Risks of Cybervetting Applicants

Every person who has applied for a job in the last ten years has probably heard that they should be careful what they post on social media.  The risks to the applicant are obvious; posting something offensive or illegal could blow your shot at the job.  But what about the risk to the employer?  Contrary to popular belief, employers cannot just pour over an applicant’s social media accounts with impunity.  Employers must be careful that their cybervetting does not give rise to discrimination or invasion of privacy claims.

Discrimination:

If you can’t ask about it in an interview, then you can’t research it online.  Discrimination laws prohibit an employer from making employment decisions based on a person’s protected status.  For example, while most employers know to steer clear of questions about pregnancy or religion in an interview, that information is often prominently displayed on social media.  Even if you don’t actually factor that knowledge into your employment decision, perception is reality in discrimination lawsuits.  If the applicant equates your awareness of their protected status with the reason you didn’t hire them, they may use that knowledge in a claim for discrimination.

Invasion of Privacy:

Notwithstanding the risk of accidentally discovering protected status, public social media accounts are fair game.  Invasion of privacy lawsuits require an expectation of privacy, which doesn’t exist in information that’s publicly shared online.  (Sumien v. Careflite, Tex.App. 2012).  Where employers need to be careful is when viewing social media accounts that the applicant took steps to make private.

There is no law that prohibits employers (including managers) from “friending” an applicant.  If the applicant accepts your request, you can legally view anything that they’ve made accessible to their friends.  You should not, however, surreptitiously view the account through a third party that is already friends with the applicant, arguably violating the applicant’s expectation of privacy.

While the law is admittedly struggling to keep up with the evolution of social media, the current trend is to respect and protect the applicant’s online privacy.  An increasing number of states – including Texas – have introduced legislation to prevent employers from requesting passwords to social media accounts to get or keep a job.  Although the Texas bill was not enacted into law, its consideration illustrates the growing attention the legislature is giving to social media and privacy laws.

The takeaway here is that the risks of cybervetting often outweigh the reward and, frankly, aren’t really necessary.  Resumes, applications, interviews and traditional background checks yield as much information as an employer should need to know without needlessly exposing them to potential liability.

DISCLAIMER:  The information provided herein is general in nature and may not be applicable in all situations.  It should not be acted upon without specific legal advice based on a particular situation.

Lexington Wolff Rykaczewski is a business employment attorney located in Houston, Texas.  A former litigator, Lexi spent years defending companies from employee claims and knows how quickly an expensive lawsuit can throw a business into a tailspin.  In 2016, Lexi started Lexington Wolff Law, PLLC, exclusively dedicated to helping employers navigate the extensive employment laws and prevent employee lawsuits.  Lexi is admitted to practice law in Texas, Colorado, Pennsylvania and West Virginia.  www.Lexingtonwolfflaw.com

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