Recruiters are increasingly turning to social media to screen and recruit candidates. Jobvite’s 2012 Social Recruiting Survey found that 92% of respondents plan to use social media for recruiting.  Often, recruiters are viewing and considering information that should not be utilized in the hiring process.  LinkedIn is replete with information that should not be considered when searching for or selecting candidates.  Yet, the same survey found that LinkedIn is the most popular social networking site for recruiters. 

LinkedIn profiles likely contain photos of candidates and other information identifying a candidate’s race, ethnicity, age, disability, pregnancy, or religion.  Federal and state anti-discrimination laws prohibit companies from using such non-work-related information when hiring.  Additionally, the Equal Employment Opportunity Commission (EEOC) has issued regulations for the employment provisions of the Genetic Information Nondiscrimination Act (GINA) that prohibit acquisition of “genetic information” through social media.  

The EEOC also has made clear that it is focusing its litigation efforts on eliminating systemic discrimination, such as discriminatory barriers in recruitment and hiring. The EEOC’s Compliance Manual states that bias is not always conscious, and that actions infected by stereotyped thinking or other forms of less conscious bias are discriminatory.  It further states that it is discriminatory to use a screening procedure that has a significantly disparate impact.

Employers can separate recruiters who screen applicants through social media from individuals who are making the hiring decision.  This would require a recruiter to search applicants online, scrub prohibited information, and deliver scrubbed profiles to a decision maker. This may be difficult for employers to act on without careful attention to details and legal guidance to avoid significant risks.  The process relies heavily upon a recruiter’s knowledge of employment laws to scrub prohibited information. Avoiding the issue because of its burdensomeness is fast being scrubbed as an option for employers.

Companies also can utilize third parties to screen applicants through social media as long as they are aware of the pitfalls.  First, many employers make little or no effort to determine whether the third party recruiters have developed appropriate safeguards.  Second, the Federal Trade Commission (FTC) has stated that employers who rely upon third parties for social media information about candidates must comply with the Fair Credit Reporting Act (FCRA).  

FCRA requires that an employer notify an applicant when it takes adverse actions based upon a consumer report.  Employers also must provide the rejected applicant with notice of his or her right to view the data relied upon as well as give the individual the opportunity to dispute any inaccurate or incorrect information.  Employers failing to comply with FCRA can be subject to tremendous liability.  For example, Spokeo, Inc., a website that collects and sells detailed consumer information by compiling online data, recently agreed to pay $800,000 to settle FTC charges alleging that it violated FCRA in the employment screening context

The EEOC, OFCCP (Office of Federal Contract Compliance Programs), and FTC are beginning to scrutinize employers that use social media to screen applicants.  Unfortunately, LinkedIn and other social media sites do not yet maintain a “safe” site for recruiters.  Employers need to anticipate government inquiry and not await the knock on the door.  Recruiters should be restricted from considering prohibited information about applicants, whether they are working on company time or researching an applicant on their own time.  They need appropriate social media guidelines and policies that are compliant with a host of laws.  Further, they need to be properly trained. 

Ignoring this problem or simply outsourcing recruitment to a third party without careful consideration of these issues and a recruiter’s qualifications is a recipe for lawsuits.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.