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Labor & Employment Bulletin - March 22, 2016 - 3/22/2016

Social Media In The Pre-Employment Hiring Process

Employers face numerous challenges when it comes to navigating the rapidly evolving social media landscape. The pervasive and public nature of social media makes it a problematic issue for employers and employees. Social media can impact every stage of the employer-employee relationship, and social media activities blur the line between workplace activity and private activity. The following article addresses employer’s use of social media as part of the pre-employment hiring process.

A. Posting Job Openings on Social Media

Social media for hiring purposes is at an all-time high: 92 percent of companies use platforms such as Twitter, LinkedIn and Facebook for recruitment, and 45 percent of Fortune 500 firms include links to social media on their career page sections.  Employers post job openings, have on-line applications and provide information related to upcoming recruiting events. Using social media in the hiring process is acceptable, provided chosen social media platforms do not have a disparate impact on protected classes.  Otherwise, traditional recruiting avenues should also be available for those seeking employment.

The Pew Research Center’s Social Media Update for 2014 provides demographics of Social Networking Platforms among online adults:

Facebook:
Used by-
71% of adult internet users

77% of women internet users
66% of men internet users

71% of White, non-Hispanic users
67% of Black, non-Hispanic users
73% of Hispanic users

Twitter:
Used by-
23% of adult internet users

21% of women internet users
24% of men internet users

21% of White, non-Hispanic users
27% of Black, non-Hispanic users
25% of Hispanic users

Pinterest:
Used by-
28% of adult internet users

42% of women internet users
13% of men internet users

32% of White, non-Hispanic users
12% of Black, non-Hispanic users
21% of Hispanic users

Linkedin:
Used by-
28% of adult internet users

27% of women internet users
28% of men internet users

29% of White, non-Hispanic users
28% of Black, non-Hispanic users
18% of Hispanic users

B. Using Social Media to Screen Job Applicants- “Cyber-vetting”

Widespread access to individuals' online activities has changed the employment screening landscape, as the search for the right candidate for a position based on expertise and qualifications has become, in some instances, an exercise in seeking a desired behavioral profile.  Social media offers employers a fast and inexpensive method of evaluating job applicants. A 2014 CareerBuilder survey reflected that 43% of employers use social networking sites to research job candidates.  Fifty-one percent of those employers who research job candidates on social media said they have found content that caused them to not hire the candidate.

However, using social media as a screening mechanism for potential employees is fraught with potential problems. The emerging online-based employment screening differs significantly from its traditional counterpart. The traditional employment screening typically focuses on criminal records, financial credit scores, civil judgments against the candidate, and other process driven outcomes of deterministic events, mostly generated through judicial proceedings and consent-driven disclosures. On the other hand, personal behavior based information collected on the Internet is predominantly an exercise in seeking individuals' digital footprints.  These digital footprints inevitably lead to the discovery of protected characteristics – such as race, religion or disability.

Recent cases and newly enacted and proposed legislation illustrate the challenges for employers in using social media searches in hiring decisions:

• Gaskell v. University of Kentucky, No. 09-244-KSF, 2010 WL 4867630 (E.D.Ky. Nov. 23, 2010).  In a highly publicized lawsuit addressing employment discrimination based on the employer's internet search, C. Martin Gaskell (“Gaskell”) claimed that the University of Kentucky (“UK”) violated Title VII when it decided not to hire him because of his religious beliefs. The case arose out of the 2007 search and selection of a founding director to oversee the new astronomical observatory at UK. Of the twelve people who applied for the position, there was no dispute that Gaskell was a leading candidate based on his application. Following review of the written applications, the UK Search Committee conducted phone interviews and ranked the leading candidates on an objective scale by assigning a number score to each of five job criteria. Gaskell came in first.  Despite Gaskell's “immense experience in virtually every aspect of the observatory director's duties,” he was not hired. Instead, UK hired a former student and employee, Timothy Knauer, who “demonstrated more of the qualities that UK wanted in its Observatory Director.” Gaskell brought suit alleging employment discrimination based on the employer's Internet search. During the search process, one of the search committee members “conducted an internet search for information about Gaskell” and found articles and lecture notes Gaskell posted on his personal website espousing certain religious views. Gaskell survived summary judgment, and the case was eventually settled for $125,000.

• Nieman v. Grange Mutual Ins. Co., No. 11-3404, 2013 WL 1332198 (C.D.Ill. Apr. 2, 2013).   In another employment discrimination lawsuit based on the employer's Internet search, Jason Nieman, a litigation and claims manager, claimed that Integrity Mutual Insurance Company (“Integrity”) violated the ADEA when it decided not to hire him because of his age. Nieman, who was 42 at the time of his candidacy, alleged Integrity “followed the industry norm and used the Internet to research” him and discovered his online LinkedIn profile, which showed his college graduation date. The controversy began in February 2009 when Integrity conducted a search for a new Vice President of Claims, which generated 133 applicants for the position, including Nieman. Although Nieman received an initial phone screening, he was not interviewed.  The position went to a 39 year old applicant. Although Nieman’s case ultimately failed at the summary judgment stage, it is an example of the kind of litigation that can result from the use of an applicant's information, obtained through an employer's Internet search, in the hiring decision.

•  In 2012 and again in 2013, federal legislation was introduced to prohibit employers and certain other entities from requiring or requesting that employees and certain other individuals provide a user name, password, or other means for accessing a personal account on any social networking website.  113th CONGRESS, 1st Session, 2013 CONG US HR 537, February 6, 2013; 112th CONGRESS, 2nd Session, 2011 CONG US HR 5050, April 27, 2012.  The Social Networking Online Protection Act (SNOPA) failed on both occasions.

• So far, 24 states have passed laws which prohibit employers from requesting or requiring an employee or potential employee to provide the employer access to the employee’s social media accounts:  Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington and Wisconsin.  Several other states have introduced similar legislation.

Employers who use social media to review job applicants should train their decision makers as to what information can and cannot be used in the hiring process and should extensively document the reasons why they did not hire an individual.

Alfred H. Perkins, Jr.


EEOC Reports “Record” Enforcement Results for
Fiscal Year 2015

The EEOC recently released a report on its activities for fiscal year (“FY”) 2015. Below is a list of some of the highlights from the report, and the complete report can be accessed at http://www.eeoc.gov/eeoc/plan/upload/2015par.pdf.

The EEOC reports that it secured more than $525 million for claimants in FY 2015, which included more than $356 million from discrimination claims in the private sector. In FY 2015, claimants filed 89,385 charges of discrimination with the EEOC. This figure represents a relatively small increase from FY 2014’s total of 88,778 charges. However, the FY 2015 total is down overall from the recent record high of more than 99,000 charges filed in 2011.

The EEOC mediated 10,579 charges during the fiscal year with an approximate 78% success rate, which resulted in more than $157 million paid to charging parties. The EEOC also successfully resolved 44% of private-sector charges through the conciliation process, which is an increase from 27% of successfully conciliated charges in FY 2010.

The EEOC filed 142 lawsuits during the fiscal year, which included one hundred individual suits versus forty-two suits involving multiple plaintiffs or discriminatory policies. Of these, sixteen were “systemic discrimination” suits. The EEOC has previously announced its attempt to place an enforcement emphasis on system discrimination cases, which it describes as a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.

The EEOC also resolved 155 lawsuits in FY 2015, recovering more than $65 million total. About $56 million of that amount came from Title VII claims. At the end of FY 2015, there were 218 active cases on the EEOC’s docket.

Chris Vinson