August 12th, 2018

In recent posts, we’ve discussed the legal privacy issues to which a pregnant Minnesota worker or job applicant is entitled. Yet a recent article questions whether social media might encourage inadvertent disclosure.

As a preliminary matter, prospective employers freely admit to using some online resources, such as LinkedIn and Google, to research job candidates. Whereas many human resource professionals regard LinkedIn as primarily a professional networking resource, the same attitude is not shared about social media sites like Twitter or Facebook.

One reason that many HR professionals have an aversion to social media is that users might accidentally post a comment that is publicly accessible, yet contains protected employment information — such as pregnancy status. An employer that secretly knows about an employee’s pregnancy status might be positioned to take advantage of that information, with enough time to disguise pregnancy discrimination in matters of promotions, job assignments, or other benefits under the guise of pretext.

Doing so might be unlawful, however, as the Pregnancy Discrimination Act prohibits employers from basing material employment decisions on pregnancy. Notably, that employment protection also extends to job applicants, as the PDA makes it unlawful for an employer to refuse to hire a pregnant candidate because of her pregnancy or a condition related to her pregnancy.

Social media might have another unintended employment consequence: Employers might research a candidate in categories not protected by federal or state employment laws, yet still considered by many individuals to be private. In fact, there are private companies that specialize in conducting social media background checks on individuals. An employer may seek to acquire an insider’s view on whether a candidate has personal information that might be regarded as embarrassing, or perhaps just controversial.

No employee or job candidate wants to be denied an opportunity for a non-meritorious reason, let alone a discriminatory one. With a few privacy controls, however, employees and candidates can control what information they make available to the public. Between smart social media use and the protections offered by federal and state employment laws, employees should be evaluated solely on their job performance and professional interactions.

Source: MPR News, “Job applicants and social media: Employers take ‘eyes wide shut’ approach,” Annie Baxter, April 8, 2013.

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