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When Job Interviewers Can’t Ask an Illegal Question, They May Snoop Through Your Social Media

social media snoopWe all know there are certain questions a job interviewer cannot ask you: religious affiliation, marital status, sexual orientation, whether you have kids, etc. But it seems that many employers get around that these days by simply snooping through your social media.

In fact, applicants report an increasingly common experience from the job market these days: after an interview, they receive “friend” requests from their interviewers. This puts them in an awkward position. Not accepting the request could hurt a person’s job chances; but at the same time, the applicant feels the sudden need to scrub their profiles before accepting.

“They didn’t know why they were being friended,” writes Donal Kluemper, a University of Illinois researcher. “If it was some personal request or if the person was going to be screening their profile.”

Again, employers are legally prohibited from asking about things like marriage, religion and other personal or family status issues. But the answers to many of those questions are readily available on sites like Facebook, where a person might have photos of their children or significant others.

According to the Society for Human Resource Management, a staggering 77% of employers now use social networking to recruit candidates, up from 34% six years ago. 15 states have expressly banned employers from asking workers for their social media passwords, and Congress is now looking into making that a national policy.

But when it comes to the information a job candidate has already made public, the rules are pretty unclear. In fact, the Equal Employment Opportunity Commission has not published any specific regulations pertaining to monitoring of social media.

Furthermore, since so much of the browsing and snooping is “unofficial,” Kluemper says rules might not even help in the first place

“Policies and regulation might just force hiring managers to do this in a less structured and more informal way, which wouldn’t be positive,” Kluemper notes.

Yet business law professor Patricia Sanchez Abril explains that anti-discrimination laws are valid regardless of where an employer find the information. However, this doesn’t necessarily make things easier on job candidates.

“This is a really gray area right now,” she says, since it’s nearly impossible to prove that the hiring manager Googled you to find out that you want to have kids or that you observe the Sabbath. “It’s much harder to prove, especially since many of these judgments are even formed subconsciously. The employer may not even realize that he or she is discriminating.”

Yet research indicates that employers are indeed discriminating based on social media findings. Carnegie Mellon University professor Alessandro Acquisti recently created fake identities of identical candidates who identified their religion only on social media. The results showed that those who self-identified on Facebook as Muslim received 17% fewer callbacks. And since technology always develops much faster that the law, Acquisti notes that it’s very hard for policymakers to address these issues.

Renee Jackson, a technology and workplace injury attorney, tells her employer clients: “They’re allowed to look, but they’re not allowed to use.”

To make their hiring policies both transparent and consistent, she advises clients to draft up clear guidelines in advance: “Who is going to do the search; when the search will be conducted during the hiring process; what sites will be searched; what type of information they’re looking for,” Jackson says.

There are also a number of third-party services like Social Intelligence that do social media research for employers, scanning for violent, racist or other illicit behavior and comments. Technically, however, they are required to redact any information that’s illegal to consider in the hiring process.

Knowledge of employers snooping through your social media may tempt future job candidates to simply get rid of their Facebook account altogether. But Michael Fertik, the CEO and founder of Reputation.com, says that doing away with your internet presence is a double-edged sword, since it also means forfeiting your chances at online recruitment.

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Emery Reddy