One of the issues that has come up quite often in the past few years is whether employers should use social media sites (such as Facebook, Instagram, and LinkedIn) to look up information about job candidates. HR professionals and attorneys actually disagree on the answer to this question: the conservative approach recommends that employers avoid using social media (because, hey, even the EEOC says so!) while the risk-takers think it’s okay (because, well, A LOT of companies are already doing it anyway).
One of the risks with researching a job candidate on social media is you can learn things about the job candidate that you are not allowed to ask about during the hiring process. For example, one of the first items you will see when visiting an individuals Facebook or LinkedIn page is their profile picture – and that picture can reveal a lot about the individual, such as their sex, race and age. In addition, social media profiles often contain information about an individuals marital status, religion, sexual preference, etc. The list goes on and on. And, with the recent Hawaii Supreme Court decision in Adams v. CDM Media, it just became much easier for a rejected applicant to prevail on a failure to hire claim and more difficult for an employer to defend against one. So, for me, because there is currently no need to look up an applicant’s Facebook page, especially if you already have a vetting process that works well, I usually recommend that employers do not research job applicants via social media.
A related issue that has come up recently is whether an employer can ask job applicants to submit a headshot with their job application. In fact, I was recently asked this very question by a reporter from the Pacific Business News, and so I shared my thoughts. In a nutshell, I explained that while it was not per se illegal – at least not in Hawaii – to ask an applicant for a picture or headshot, it is a dangerous practice to do so for many of the same reasons that I advise employers against researching a job applicant’s social media account (unless the individual is applying to be a model, spokesperson, or other job position where their looks would constitute a BFOQ). I also specified that a picture can reveal many characteristics about an individual, such as race, sex, age, and ethnicity that an employer cannot inquire about through the job application or other parts of the hiring process. In addition, in the section of their website discussing “Prohibited Employment Policies/Practices” the EEOC has stated that “employers should not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.”
An online version of the PBN article can be viewed here: PBN Article on Sky Waikiki Hiring Process.