The Dangers Of Using Social Media Data In Hiring

Months ago I warned broadcasters that the FCC was not the only Washington regulatory agency that had to be on your radar. At that time I was talking about the Federal Trade Commission. My last article warned about developments at the NLRB relating to social media and its attention to employee rights to comment on employers. Given the widespread, now critically important use of social media by broadcasters, that case was a warning.

Now comes another employment-related matter involving social media that has implications for serious FCC issues and could directly jeopardize a broadcaster before yet another Washington agency, the Equal Employment Opportunity Commission (the EEOC).

Tons of recent news reports have discussed the extensive use of social media by the age group now entering the work force, warning that employers are mining the social media data to develop extensive "dossiers" on applicants. Reports have included stories of how a careless "tweet" or Facebook posting can overcome a favorable interview. Picture human resources staff digging into MySpace, snagging pictures of applicants at bong parties and finding admissions of employees stealing boxes of copy paper? Does your GM learn about the latest office pregnancy or skiing accident on Facebook? Has social media become an official information source for your company?

If so, the EEOC may be your next regulatory agency of concern. It could regulate your use of social networking sites, especially as it relates to health data. A team of Womble Carlyle's Privacy and Data Protection and Labor & Employment lawyers recently warned that new interpretive guidance from the EEOC's top lawyer has warned about new hiring practices in the Internet era that could be considered discriminatory under new anti-discrimination regulations.

At least one EEOC official has called this a "snowballing problem" arising from the use of social media in the hiring process through which an employer may become aware of an individual's protected characteristics such as marital status, sexual orientation, religious affiliation or political activities.

Long-awaited regulations implementing GINA (the federal Genetic Information and Nondiscrimination Act) seem to reflect these concerns. GINA not only prohibits employers from discriminating against employees and job applicants, but also prohibits employers from acquiring employees' genetic information. The EEOC recently decided that sharing information over Facebook, Twitter and other social networking sites is analogous to discussing such matters around the water cooler with management in earshot, which falls within the "inadvertent acquisition" exception to GINA's prohibition on the employer's acquisition and possession of employees' genetic information.

However, even if the acquisition of genetic information on social networking sites is not purposeful, employers must still address the significance of having obtained that information - which may be uncovered in the course of a routine background check of a potential hire. In a recent interview, P. David Lopez, general counsel for the EEOC, was asked "What are the big, cutting-edge discrimination issues facing the EEOC?" Mr. Lopez responded, "We're going through difficult economic times right now. It's important to identify discriminatory hiring practices and policies that are excluding people unlawfully from the workplace." Questioned further, he was asked "With so much information available online about virtually everyone, how much checking should an employer do before making a hiring decision?" He answered, "I think they need to be very cautious doing online background checks." He further advised that, "The employer should examine how it recruits and hires new people. Once you start digging, it's not always passive." The Houston Chronicle, April 8, 2011.

While this has obvious implications for broadcasters as employers, a question is presented whether it also could result in a violation of the FCC Equal Employment Opportunity rules. Under section 73.2080, every broadcaster must afford equal employment opportunity to all qualified persons, and no person shall be discriminated against in employment by such stations because of race, color, religion, national origin or sex. The first clause of that sentence is connected to the second clause by the disjunctive connector "and" and therefore stands by itself; not limited by the categories of the latter part. Therefore, it is likely that an EEOC finding of a failure to afford equal opportunities based on discriminatory information mined from social networks could land a licensee in serious trouble at the FCC as well. Moreover, employment of this standard at the EEOC may require its consideration by the FCC in its own process independently of whether the EEOC addresses the case.

It is, therefore, very important that licensees implement clear procedures for social media use in screening job applicants and avoid rogue searching. An employer in the possession of information about applicants' or employees' protected characteristics may face the challenge of establishing that employment decisions were made without regard for that information. A structured process with a division of duties between human resource staff trained in the use of social media screening and the managers making employment decisions offers one means of risk reduction. Such a division permits relevant information to reach decision-makers without unnecessary "inadvertently acquired" material obtained from social media sites. Womble lawyers would be happy to further discuss this development with anyone having further questions.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.