Hiring Talent in an Era of Social Media and New Privacy Laws

Nowadays, we live in two worlds. One in which we hop into our cars to go to work, and another one in which we log in to websites to meet friends and family. It almost seems as though a life online is inevitable for most of us. How can we be in the know or find a job if we don’t have an online presence? I always joke that soon new parents will not only need to choose a name for their newborn child but also think of an appropriate URL.

The inevitability of an online presence is also unsurprisingly bringing about concerns over online privacy, as a recent Consumer Reports survey suggested. Begging the question, is online privacy even possible these days? The answer, I think, depends on the next wave of privacy legislation.

In the workplace, employers have taken advantage of their ability to access information on social media to make hiring decisions. However, they are now watching closely recent legislation passed in several states aimed at protecting the privacy of individuals by restricting how employers can access this information.

According to the Littler Workplace Policy Institute, recent social media password protection laws differ from one another, but mainly do the following:

  • Prohibit employers from asking applicants and employees for their social media accounts’ login information.
  • Prohibit employers from requesting to see social media content in other ways that do not require login information such as asking the applicant or employee to show the content directly to the employer.
  • Provide exceptions to these restrictions given certain employer investigations.

Now, should employers care about not being able to access information found on social media accounts? Well, employers should certainly care as these laws will impose restrictions and increase employers’ liabilities were these to be broken; however, let’s review the implications in relation to the ultimate goal for the recruitment function: to hire the best talent, which I believe includes the ability to predict fit, performance, and to avoid negligent hiring.

Predicting performance:

According to a study conducted by Reppler – a company that helps social media users manage their online image – 91% of employers use social media to screen candidates. In fact, close to 70% have used information found in social media to hire or reject candidates.

The social media information these employer respondents used to make their hiring decisions seems to be related in great part to manifestations of candidates’ personalities. That is, most rejections were based on inappropriate comments or photos, while most decisions to hire were based on perceptions of personality and organizational fit, and creativity. But is information in social media sites predictive of job performance?

A study conducted in 2012 by Kluemper, Rosen, and Mossholder found that evaluations of the big five personality factors (agreeableness, conscientiousness, extraversion, openness, and emotional stability) based on information found on Facebook did correlate to supervisor-rated job performance. In this study, job performance included ratings in three different areas: task performance, organizational citizenship toward individuals and toward the organization.

This suggests that Facebook information could potentially be used to predict some measure of performance, however, it is important to note that Kluemper has also suggested that there is a lot more research that needs to be conducted in order to conclusively establish this relationship.

In addition, the evaluators in this study were trained on the Big Five and respective rating tools. You might agree that it safe to assume that many employers do not yet have this level of sophistication in social media-based selection (scary term?) and most recruiters do not receive training on how to consider social media information in making the right hire or predicting performance and fit. In fact, I could not find studies assessing the relationship between personal information in social media and measures of person-organization fit.

Negligent Hiring:

Employers could be held liable for hiring someone who ends up injuring a third party due to the employee’s being unfit for the job at hand. The employer could be responsible for damages if it failed to conduct an appropriate investigation of that employee’s experience, character, qualifications, and other factors that would help the employer determine if the employee was capable of doing the job.   Evidently, social media could serve as a source of insight into these areas, especially, in times when former employers do not give full references in fear of defamation lawsuits and the costs involved.

Now, recent social media password protected laws do much more than to just prohibit employers from requesting passwords. They also restrict other ways of accessing this information such as shoulder surfing, which is asking a candidate to show content in their social media site while the employer is literally sitting next to the candidate.

Even though there is lack of evidence that most employers request passwords or engage in shoulder surfing, these new laws are likely to make employers think twice about accessing personal information through social media, even though these sites might be a source of information on someone’s experience, character, and so forth.

This presents a certain contradiction since plaintiffs could be successful in their lawsuit if they can show that employers should know or should have known that the candidate was not fit for the job, leaving the employer at a disadvantage as information relevant to someone’s character or experience could be found in social media sites. Experts are not sure yet whether employers could use these laws’ restrictions as a defense in a negligent hiring lawsuit.


Employers should care and be careful!

Employers should be careful in using any information found on social media to make predictions on future performance and fit. Attempts to do so should ideally be treated as you would any other formal selection tool that requires an appropriate level of sophistication, validation process, and implementation. However,  given the lack of research in this area, sophisticated tools are not likely to come any time soon.

Employers should care about recent and upcoming state and federal laws aimed at protecting the privacy of citizens by restricting employers’ accessibility of social media information. Employers who already use social media information in the pre-employment process need to carefully monitor how social media and changes in privacy laws will affect their ability to perform due diligence on the candidates’ background.

Concerns over privacy are always appropriate, especially in an era where online platforms can disseminate personal information faster and to a wider audience than can any other medium we know. Resulting privacy laws might actually prompt employers take a step back and think about how accessibility to this information or lack thereof can help or prevent them in finding the best talent.

I look forward to hearing your thoughts and experiences!

Aleister Avila, SPHR

8 thoughts on “Hiring Talent in an Era of Social Media and New Privacy Laws

  1. Aleister, great post. I agree that employers have to be limited in how much personal information that can pull off of social media about somebody. However, it is also true that it says a great deal about an employee when they are negligent enough to post damaging information online. It is the digital age. We all know the rule: What goes online, stays online. The same way that an employer can be held accountable for pulling inappropriate information off social media, the prospective employee should be aware enough to know that material should have never been posted there anyway. So at the very least, while the material itself may not be the criteria by which the manager denies the employee, the lack of intelligence involved in posting damaging information could be as good an indicator as any to an employer. Thanks!

    1. Ray, I agree, people’s online behaviors can translate into work behaviors. Especially, when it is implicit that any information on the web can be viewed by anyone. Employers however, need to make sure their decisions are based on sound criteria which won’t negatively impact protected groups.

  2. Very interesting blog.

    I really think that employers can take advantage of knowing more about the people they are planning to hire, accessing to their information in their social media, but only the information that is available to the public without asking for any log in information. And as you mention, these companies have to be very careful about new legislation aimed to protecting the privacy of individuals.

    As possible candidate for a position, you are the only responsible for the information that you have in your social media pages, so you have to be careful and know exactly what you post.

    Online privacy is a big concern now days, but you have the control the information that you have on your social media. So be careful with the information that you post online because you don’t know who can access to it.

    1. Alicia, great point, people do have great responsibility in making sure personal information and behaviors are not counterproductive to their own marketability. I wonder if this will eventually mean that people’s online personas will be as professional as the image they project at work, thus, rendering efforts of due diligence from the part of employers, unproductive.

  3. Aleister,

    Your post brings up very valid points. A recruiter might be able to find information about a candidate and have an opinion based on what they see. Now, after this, you have to consider that this recruiter is already biased with this candidate since he has taken the time to search and see on social sites what is person like out of work. His decision will already be influenced by the information found online. Can’t we go back to how things worked before? no pulling up profiles or social media sites to check on a candidate? Maybe not, information is everywhere.

    Times have changed and from here we as candidates or recruiters can only take the necessary precautions to make a smart choice about what we publicly say online. Or it might come back and haunt you.

    1. Claudia, awesome point. If recruiters need to be trained on biases which arise during interviews, they should also be trained on biases which arise from perusing a candidate’s social media page! I do think though that review of social media reviews are here to stay. Perhaps as Alicia said, only in the public realm.

  4. Recruiters should definitively care about data on social media. Data allows recruiters and companies understand fully who the workforce is and how to best hire and train employees. Data is not a tool recruiters and HR departments should overlook, it would be like looking for a red ball in a pool of blue balls blindfolded.

  5. Very informative Aleister, thank you! Social media and privacy are at cross roads with each other nowadays; both are needed and feared. It’s a struggle for companies to attract new talent and be cutting edge and maintain privacy and ethical boundaries… great post.

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