Attorney: Searching Job Applicants’ Facebook Violates Employment Law

I’ve expressed opposition to employers’ and prospective employers’ snooping through the social media accounts of their workers and job applicants. If my liberal/libertarian concerns about privacy don’t persuade bosses to keep their noses out of applicants’ Facebook profiles, local lawyer and former Brown County state’s attorney Kim Dorsett provides a sound legal argument should. In the latest Aberdeen Area Chamber of Commerce magazine, Dorsett says searching through an applicant’s social media profile could lead to trouble in court:

Federal and state law prohibit[…] an employer from making hiring decisions on the basis of certain protected characteristics, such as a person’s race, color, religion, sex, national origin, age, disability, or genetic information.

As a result, an employer is not allowed to ask illegal questions of applicants, such as age, marital status, pregnancy status, plans for more children, unrelated criminal history, religious beliefs, or plans for retirement.

However, with a few clicks of the mouse an employer can indirectly see prohibited information, such as a Facebook post announcing a pregnancy. Once this prohibited information is seen, it will be impossible to convince an EEOC investigator it was not a factor in any decision to pass on that applicant [Kim Dorsett, “Why You Should Stop Facebook Snooping on Job Applicants,” Progress, Nov/Dec 2017, p. 25].

Now, here’s your Sunday legal puzzlers: if snooping through a job applicant’s Facebook page violates employment law, what about general Googling? Suppose a blog post contains information about an applicant’s religion, or a wedding announcement shows an applicant is in a biracial marriage. Do employers dare Google their applicants when there’s a chance that such prohibited information may pop up in the search results?

17 Responses to Attorney: Searching Job Applicants’ Facebook Violates Employment Law

  1. David Newquist

    South Dakota is an at-will state, meaning an employer can fire an employee anytime he/she wants with impunity as long as no reasons of a discriminatory nature are stated. One can assume that the same criterion can be used in hiring. Employers can do what they want in South Dakota as long as they don’t give reasons.

    The legal advice from the former state’s attorney whose office fired Brandon Taliaferro, then charged him with witness tampering, which charges were thrown out of court and rebuked by the judge, should be regarded with some circumspection.

    Many knowledgeable people wonder why the attorneys involved were never disciplined for malicious prosecution. But such is the state of “justice” in South Dakota.

  2. Is this any worse than peeing in cup for your employer? It’s all overreaching in my opinion.

  3. Chuck-Z, I also oppose employers’ snooping in their employees’ and applicants’ bodies.

    David, your caution is well warranted. But I do find it interesting that a member of the Republican establishment would take a pro-labor, anti-management privacy position.

  4. David Newquist

    The Chamber magazine featured a regular column by labor lawyer Dennis Maloney on labor law from the perspective of employers, warning them of all the traps they could fall into in the maze regulations regarding workers. It was advice given on how to deal with overreaching government on employment matters, and the tone was clearly anti-worker, anti-union. The column you cite appears to be a continuation of that attitude. I read it more as a citation of the outrageous things an employer cannot do, particularly as the second graph contains misleading exaggerations and outright errors.

  5. Was Maloney a local lawyer? Is he still around?

  6. David Newquist

    Yes, he’s 87.
    He and wife Marilyn still list an office at 722 S Highway 281
    Aberdeen, South Dakota 57401-5648, under the firm name Maloney and Maloney.

  7. One of the many reasons I’m not on Facebook.

  8. mike from iowa

    Dakota would manage without another good ole boy that puts party loyalty over any semblance of government.

    Since wingnuts refuse to be pulled into the 21st century, one wingnut is as good or bad as any other in the devil’s lair in Pierre.

  9. My blog and candidate FB pages are public, but my personal page is private.

  10. Seems like a thin argument. Asking restricted questions and using prohibited characteristics as a basis for denying employment are very different than simply viewing public information about somebody.

    It is suggested that it would be impossible for the employer to overcome the presumption of wrongful conduct if he or she denies an applicant a job once the “protected characteristic” information is known, but that’s ridiculous. At a job interview the employer will often know if a person is a minority or if they’re pregnant or whether they’re elderly. Just because you know that doesn’t mean you are required to hire them or you risk violating their rights. It just means you should base your decision on legitimate factors like a good person should anyway, and if you are accused of using improper factors in your decision, you defend against that by showing what those legitimate reasons were.

    Seems intuitive, I’m surprised anybody is taking this seriously.

  11. Maybe thin, but consider: even if Facebook posts are publicly available, they don’t just fall into an employer’s lap. They aren’t up on billboards (yet). The employer has to take active steps to access that information. In a court’s eyes, wouldn’t that constitute seeking/asking for that prohibited information?

  12. Described like that, it seems that the employer is “seeking” information, but simply seeking information about an applicant isn’t problematic. Seeking specific information that shows the existence of a protected characteristic is problematic. That’s why you can’t ask questions like “What is your religion?” or “Do you plan to have more kids?” But if you ask “what are your hobbies?” And somebody answers “Reading the koran,” or “Trying to have more kids,” you have not asked a prohibited question, but you have learned about the applicant’s protected characteristic.

    Reviewing social media, or any other public document or records, for information about a person is a seemingly unbiased, totally normal, and anticipated way to learn about somebody you are going to meet. I’m not motivated enough to do the research on this, but I would bet it has been litigated at least once by some attorney looking to get paid or make a name for himself despite a flimsy cause of action, and I further bet the person making a discrimination argument was laughed out of court by the judge, unless there is actually some evidence to show that an employer used prohibited considerations in his or her hiring decision.

  13. I dig what you’re saying, Ryan, about not holding employers accountable for applicants’ sharing prohibited information in a job interview. But there’s the thing: on Facebook, we don’t think of ourselves as being in a job interview. Employers snooping into social media accounts are entering a forum in which there is a reasonable expectation that prohibited information may be shared.

    Now we tell young people not to post lewd, boozy, or bigoted photos of themselves online, because that stuff will last forever and get back to prospective employers. But that’s different, because vulgarity, booziness, and racist stupidity aren’t EEOC-prohibited information.

    Maybe we could make the argument this way:

    The EEOC says workers get to keep certain information to themselves in job interviews to protect themselves from undue discrimination.

    If we let employers rummage through all of our social media accounts, we have to censor ourselves just as we would censor ourselves in a job interview.

    Allowing employers to turn our social media accounts into perpetual job interviews, from a legal perspective, abridges applicants’ First Amendment right to expression in situations well beyond the employers’ interest or authority.

    Therefore, the state has an interest in protecting citizens not just from employment discrimination but from employer suppression of First Amendment rights of people who don’t even work for them yet and who may never work for them. Employers have no comparable countervailing interest in accessing applicants’ social media accounts, because everything employers have a legitimate legal interest in learning can be found through normal application and interview procedures.

  14. I think the current state of technology makes it so everybody who chooses to have an online presence is perpetually being interviewed for something. We all know this and should understand the ramifications of posting about certain controversial topics, but that’s not what this is about.

    The first amendment protects speech from government censorship, it doesn’t guarantee there are no social consequences for your speech. But even that isn’t what this is about.

    The question isn’t whether a prospective employer can judge you for your speech because we aren’t talking about speech at all. Is being caucasian speech? Is being old speech? Or pregant, or muslim, or transgender? Those characteristics that are protected aren’t speech, they are traits. We as a society have said using those traits for hiring decisions is wrong, so we protect against that by preventing illegitimate, irrelevant questions, but looking at somebody’s online presence has many legitimate, relevant purposes. I think it would be tough to convince most people that the only thing, or even the most important thing, an employer could learn about an applicant online is protected-trait information.

  15. Ah, but there’s a difference between social consequences and the violations of civil rights against which EEOC regs protect job applicants.

    Traits aren’t speech, but daily life involves speech that almost inescapably expresses those traits. To say to a Christian, “Sure, you can be Christian, but you must never say anything that others might hear about your Christianity, lest an employer discriminate against you,” renders the First Amendment meaningless. Christians have a right to speak of their faith in daily interactions. Asking employers not to go clicking on an archive of those daily interactions is far less oppressive to far fewer people’s rights (what right, again, does anyone have to read anyone else’s Facebook page?) than asking everyone who might apply for a job to never speak of her protected-class status online.

    Protected-trait status doesn’t have to be the only content on social media channels to justify Dorsett’s advice to employers. It just has to be there. We can still rightly turn to employers and ask what compelling interest they have to access those channels when they can already get all the information that serves their interest by other formal application and interview means.

  16. I don’t agree that employers can “get all the information that serves their interest by other formal application and interview means.” People often put on a performance during an interview because they want to get the job, so the interviewer isn’t seeing who the person really is, they are seeing the presentation of the person.

    Looking online to see if this person is a blatant racist, drug user, general idiot, or otherwise makes very real, practical sense. The rules that protect our civil rights don’t suggest that knowing certain information is a problem. It’s the way the information is used. I don’t think it is any more or less likely for an employer to use race or religion information found online as a basis for a hiring decision than the employer using the same information discovered innocently during an in-person interview. Also, this would be a rule that is impossible to enforce, which makes it useless. We can look at employment applications and see if the employer is asking about protected information, but we can’t sit on every employer’s lap and watch what they do online to make sure they aren’t reading an applicant’s tweets.

    If the interviewer is a racist person and doesn’t want to hire somebody of the race he doesn’t like, whether he sees their race online or in the interview, do you think it makes a bit of difference? He’s not going to hire that person.

    Taking that point further, do you suggest doing all interviews by typed letter, through the mail? Otherwise, an employer will learn traits about a person during the interview process that he is not allowed to use in making his decision.

    It isn’t a perfect system, but we have to start with the presumption that people will do the right thing (it’s a hard presumption for me to support, believe me, I typically assume the worst of people). If we start with the assumption that an employer will use innocently-obtained protected trait information inappropriately to make their decision, every in-person interview is suspect because the interviewer will almost certainly learn at least a person’s race and gender, which I would argue are the two characteristics with the likelihood of being the “deal breaker” for racist or sexist employers.

    Dorsett’s advice should be for employers who innocently obtain protected trait information not to use it in their decisions, and to document their reasoning for hiring or not hiring a person to rebut any accusation of improper use of the information. Doesn’t that just sound more…wait for it…reasonable? And realistic?

  17. Really?

    “blatant racist, drug user, general idiot”—any one of those factors should be obvious in an interview. Sit someone down, make him talk for an hour or two, and idiocy or drug-addled performance should manifest itself. Racist? Bring in your Lakota VP and watch the applicants eyes and body language.

    The prohibited information from an online search is not “innocently obtained”. The Facebook-snooping employer is deliberately trying to skirt the law. But clicking “Search” is equivalent to asking.

    The only such information innocently obtained during an interview is information the applicant volunteers in the interview. But as long as the interviewer does not ask, the law cuts him slack. I’m just saying you cannot make life a perpetual interview in every forum without imposing unfair restrictions on freedom of speech. Let’s put workers first in this one small way, shall we?

    Sure, there’s no hiding the fact that an applicant is black in a face-to-face interview. But the interviewer still can’t ask. Suppose I have a black-supremacist employer and Malia Obama walks in for an interview. She looks black, but the interviewer can’t ask, “So, any white folks in your background?” and force Malia to mention her white grandma.

    No, it’s far more reasonable to say to employers, “Don’t Facebook your applicants” than to say, “Look at whatever you want, but then write a story assuring us that the information you obtained in those searches had nothing to do with the decision you made.” Analogy: it’s more reasonable to tell folks on the street, “Don’t walk into strangers’ houses uninvited” than it is to say, “Walk into any house you want, but send a letter to the police station afterward assuring us that you didn’t riffle through any purses or file cabinets.”