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Do Employers Have the Right to Judge Your Social Media Presence?

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It’s no surprise that employers do a little internet “research” when considering a job applicant. According to a recent survey by CareerBuilder, it’s become standard practice: 70 percent of employers now use social media to screen applicants during the hiring process. Further, 3 in 10 employers have someone solely dedicated to investigating candidates’ online presence.

In the EU, policymakers are attempting to crack down on companies’ internet sleuthing with non-binding guidelines: employers should inform applicants that their social media will be screened, and keep searches proportionate to the job being applied for.

Here in the U.S., the rules are less clear. With an increasingly competitive job market and so much information about us being just a click away, it’s important to understand your rights when it comes to social media and job hunting. Here at Levo, we’ve got your back! We talked to HR consultant and compliance expert Karen Bender for Insurance in Madison, WI. to help clear up some of the confusion.

Are there any legal standards for what information employers can search? Are all social media sites fair game?

According to Bender, any information you’ve made public online is up for consumption. “Applicants and employees need to realize that anything on the internet is in the public domain,” she says. “No one, even an employer, is restricted from seeing that information, whether on purpose or by accident.” Further, Bender warns, job-seekers “should never assume confidentiality.”

While it’s important to keep in mind that anything you’ve made public online can be seen by employers, that doesn’t necessarily mean companies have carte blanche to act on what they learn from researching your public presence. According to Bender, companies “cannot make employment decisions based on legal activities or for illegal reasons.”

What does the term “legal activities” refer to?

Bender explains, “employment decisions always have to be made without consideration of anything legal that is seen on social media.” So even if you post a picture of yourself holding a beer at a party, an employer cannot discriminate against you for drinking, because it’s a perfectly legal activity. Of course, Bender says, there are a few exceptions, notably in jobs that require a high level of trust. But those searches will always be carried out by someone who is appropriately trained.

Ok, so what are “illegal reasons?”

Here’s an example: Let’s say you apply for a job and a company searches your Facebook and learns that you are pregnant. They cannot discriminate against you or choose not to hire you based on that information.

This can put employers in a conundrum. If they search your name and see something on one of your profiles, they can’t unsee it. Not to mention, Bender says, “the employer may have a hard time proving they did not make the [hiring] decision based on what they learned” through the screening.

That’s why Bender recommends that employers stick to searching professional social networks like LinkedIn, while avoiding sites like Facebook, Instagram and others. “There is probably nothing that is ‘off-limits’ to search for,” Bender admits. However, she cautions, “even if there is nothing off-limits, I go back to the theory of ‘just because you can doesn’t mean you should.’”

What about companies “friending” job-seekers or employees, or otherwise trying to gain access to non-public social media information?

This is considered a no-no. As a candidate, you are not obligated to accept friend requests from potential employers, nor are you required to provide them with your login information to social networks. Bender never recommends an employer “friend” an employee or candidate. Usually, she advises the opposite, “Keep your work relationships separate from your friend relationships.”

So, should job-seekers consider anything public to be fair game for potential employers?

“Yes, job seekers should consider anything out there as fair game,” Bender advises. “Right or wrong, it is not illegal to look. What is illegal is making employment decisions based on what they may find -- if they are doing it in an inappropriate manner (ie: discriminating based on legal behavior they do not approve of).”

What should candidates do to protect themselves?

Anything you don’t want potential employers to see should be kept private. If you keep most of your postings on social media restricted to friends, there is no chance an employer can use your information against you. That said, you probably don’t want to be too private: According to CareerBuilder’s survey, 57 percent of employers are less likely to call a candidate with no online presence at all.

A strong and professional social media presence can actually give your application a boost, so long as you aren’t posting wildly inappropriate content. In fact, CareerBuilder’s survey found that “more than 44 percent of employers have found content on a social networking site that caused them to hire the candidate.” The most common reasons? Professional qualifications, great communication skills, a professional image, and creativity.

So don’t be afraid to put yourself out there on social media. Used appropriately, it could actually land you your dream job.

(Image via Getty)

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