It is 2022, and the age of social media is at its peak and more powerful than ever. A simple search of a name can generate someone’s personal life in just a matter of seconds. Nowadays, most people who are seeking employment use some sort of social networking site. In order to keep up with contemporary routines, employers are now using social media as a way to screen potential employees. Think about that; employers are using pictures and posts as a way to filter out who they deem is a suitable employee although it is unlawful for an employer to fail or refuse to hire . . . because of such individual’s race, color, religion, sex, or national origin.[i] Some may argue this is an extremely unfair and subjective tactic by employers while others will claim employers have a right to conduct research on a person they will potentially hire and subsequently invest their time and money in.[ii]
There is much more to a person than what an employer may see on a resume. Experience, education, and credentials are all considered to be crucial in determining whether or not a potential candidate for a specific job is eligible, worthy, and suitable. However, employers often face an astonishingly large pool of highly qualified candidates with no way to differentiate them outside of a piece of paper.[iii] This is where social media comes in. Instead of having to dig through the haystack for a needle, employers–or someone they confide in–conduct a swift social media check on all their candidates. Employers may easily reduce their pool of applicants should they see a red flag on a social media site. More specifically, it is more than reasonable and rational to not blemish a company with someone who has an alcohol/drug abuse history or has made profane and/or inappropriate remarks. See Sensabaugh v. Halliburton, 937 F.3d 621, 625 (6th Cir. 2019).[iv] Knowing this, young professionals should not post nor say anything controversial that may one day come back to haunt them, such as the Facebook posts that led to the firing of the football coach in Sensabaugh. Those seeking a smooth transition into the workforce should scrub their social media to ensure that it will not be even the slightest issue that obstructs their chances of being hired.[v]
On the other hand, employers must walk a fine line between using a potential candidate’s social media activity to properly vet versus the risk of subconscious discrimination and bias. Conversely, giving too much weight to a person’s social media activity may blind employers from seeing the bigger picture. Giving social media due diligence too much weight may influence bias and discrimination by an employer who may eliminate a potentially qualified candidate just because of a picture or post they may not have been fond of. Notably, 42 U.S.C § 2000 prohibits discrimination against individuals in employment on the basis of race, color, religion, sex, or national origin. If an employer makes the decision to not interview a candidate after learning of the candidate’s sex or race, that candidate may have a viable discrimination claim. Another downfall of using social media as a significant factor in the hiring process is the unwarranted invasion of privacy as demonstrated in Doe v. Yum! Brands, Inc., 639 S.W.3d 214, 223 (Tex. App. 2021). Doe discusses in dicta how employers do not have a duty to go beyond and examine a prospective employee’s social media accounts.[vi] Social media outlets are often used as way to escape from reality as young professionals tend to keep their work life and social life separate. Maintaining a healthy balance between the two is essential in preventing work-induced stress. As a result, this potential fear of being active on social media may implant a feeling of an invasion of privacy that may have detrimental long-term effects in the world of social media use.[vii]
In a nutshell, social media is a valuable resource in vetting individuals who will have a lot of time and money invested in them. Using social media to filter out employee candidates who will reflect a negative light on their employer is and should be a widely accepted practice; the question will be whether employers follow a stricter Sensabaugh approach, or the methodology applied in Doe, which is that employers have no duty to check social media and thus cannot foresee certain types of behavior. Nonetheless, employers should proceed with caution when using a candidate’s social media activity to implement their own subjective views and biases into the hiring process, which in turn will lead to eliminating a potential star employee.[viii]
[i] See 42 U.S. Code § 2000e-2 (2022).
[ii] See Impacts of Social Media on Every Employment Level, Business Talent Solutions, https://www.businesstalentsolutions.com/impacts-of-social-media-on-every-employment-level/ (last visited Feb. 25, 2022).
[iii] See Kara Jo Eischen, Should Employers “Like” Social Media Screenings? The Pros And Cons Of Social Media Screenings In Hiring, Drake L. Rev. 102, 111 (2021).
[iv] See Sensabaugh v. Halliburton, 937 F.3d 621, 625 (6th Cir. 2019).
[v] See Kerry Hannon, How Social Networks Impact Your Job Search, AARP, https://www.aarp.org/work/job-hunting/info-2016/social-media-impacts-job-search.html (last visited Feb. 25, 2022).
[vi] See Doe v. Yum! Brands, Inc., 639 S.W.3d 214, 223 (Tex. App. 2021)
[vii] See How Social Media Can Affect The Hiring Process, SUMMIT Search Group, https://summitsearchgroup.com/social-media-affect-hiring-process/ (last visited Feb. 26, 2022).
[viii] See Jacquelyn Smith, How Social Media Can Help (Or Hurt) You In Your Job Search, Forbes, https://www.forbes.com/sites/jacquelynsmith/2013/04/16/how-social-media-can-help-or-hurt-your-job-search/?sh=99c314e7ae24 (last visited Feb. 26, 2022).