That's according to Ashley Laken, a lawyer with labor law practice Seyfarth Shaw, who cited statements made by National Labor Relations Board general counsel Richard Griffin and U.S. Equal Employment Opportunity Commission commissioner Chai Feldblum at a recent panel discussion. Griffin and Feldblum agreed that social media screening during the hiring process could contain potential legal pitfalls, even if the employer doesn't make any negative judgment based on a candidate’s social media presence.
The risk lies in the possibility that an employer will come across content that indicates a prospective employee's attitudes regarding labor organization -- and even if the employer doesn't actually see this content, its mere presence, combined with the fact that the employer looks at the applicant’s social media profile, could be enough to get them into trouble.
Elaborating on statements made by the labor law honchos, Laken put forward a hypothetical scenario in which a hiring manager looks at the social media profile of someone applying for a job in a non-union workplace. The profile contains content showing that the employee is pro-union and enjoys birdwatching. During their interview the hiring manager brings up their shared love of birdwatching, revealing that he found the information on the applicant’s social media profile. Later the hiring manager decides not to hire the applicant, and the applicant files a complaint with the NLRB accusing him of discriminating against her because of the pro-union stance on her profile -- even if it was never discussed during the interview.
In addition, it isn’t necessarily possible for a hiring manager to “sanitize” the process by, say, asking another executive to look at an applicant's social profile and report only information that doesn’t pertain to labor relations; once again, for legal purposes the presumption would be that managers may be sharing all the information they find on the social media profile.
Employers are unlikely to give up social media screening altogether, of course. The easy solution to the labor law pitfalls is to just avoid mentioning any information they found on social media in the first place. Meanwhile, there are still plenty of valid reasons for rejecting someone based on their social profile (even if you don't tell them that's why). According to a recent survey from Jobvite, 55% of recruiters said they have reconsidered a candidate based on their social profile, up from just 13% in 2013. Among those who have reconsidered a candidate, 61% decided to reject them after seeing something unflattering on social media. And within this group, 83% said they have reconsidered someone because of references to illegal drugs, 70% because of sexual posts, 66% because of spelling or errors in grammar, 63% because of profanity, 51% because of posts involving guns, and 44% because of alcohol.