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Legal Concerns When Considering Social Media Data in Selection

Authors:
  • University of Louisiana Monroe
  • -Purdue University Fort Wayne

Abstract

This chapter examines the current state of the law in the United States on the use of social media data in the employee selection process. We begin by reviewing existing legal protections that could be violated when organizations use social media data, and we discuss recent case law involving social media and selection. We highlight various federal laws that have been used by the courts in social media selection cases, and we examine state laws that ban employers from asking applicants to provide social media user names and passwords as a condition of employment. We then review three examples of laws in other countries that could impact the use of social media data in selection both practically and legally. We conclude by suggesting practical guidelines for employers in their use of social media data in selection.
Metadata of the chapter that will be visualized online
Chapter Title Legal Concerns When Considering Social Media Data in Selection
Copyright Year 2016
Copyright Holder Springer International Publishing Switzerland
Corresponding Author Family Name Schmidt
Particle
Given Name Gordon B.
Suffix
Division Division of Organizational
Leadership and Supervision
Organization/University Indiana University-Purdue University
Fort Wayne
Street Neff 288D, 2101 East Coliseum
Blvd.
City Fort Wayne
State IN
Postcode 46805
Country USA
Email schmidtg@ipfw.edu
Author Family Name O’Connor
Particle
Given Name Kimberly W.
Suffix
Division Division of Organizational
Leadership and Supervision
Organization/University Indiana University-Purdue University
Fort Wayne
Street Neff 288D, 2101 East Coliseum
Blvd.
City Fort Wayne
State IN
Postcode 46805
Country USA
Email oconnok@ipfw.edu
Abstract This chapter examines the current state of the law in the United States on
the use of social media data in the employee selection process. We begin by
reviewing existing legal protections that could be violated when organizations
use social media data, and we discuss recent case law involving social media
and selection. We highlight various federal laws that have been used by the
courts in social media selection cases, and we examine state laws that ban
employers from asking applicants to provide social media user names and
passwords as a condition of employment. We then review three examples
of laws in other countries that could impact the use of social media data in
selection both practically and legally. We conclude by suggesting practical
guidelines for employers in their use of social media data in selection.
Keywords (separated
by “ - ”)
Social media - Selection - Title VII - Protected classes - Discrimination -
Wrongful discharge - Case law - International law - Right to be forgotten -
Social media passwords
© Springer International Publishing Switzerland 2016
R.N. Landers, G.B. Schmidt (eds.), Social Media in Employee Selection and
Recruitment, DOI 10.1007/978-3-319-29989-1_13
Chapter 13
Legal Concerns When Considering Social
Media Data in Selection
Gordon B. Schmidt and Kimberly W. O’Connor
Abstract This chapter examines the current state of the law in the United States on
the use of social media data in the employee selection process. We begin by review-
ing existing legal protections that could be violated when organizations use social
media data, and we discuss recent case law involving social media and selection.
We highlight various federal laws that have been used by the courts in social media
selection cases, and we examine state laws that ban employers from asking
applicants to provide social media user names and passwords as a condition of
employment. We then review three examples of laws in other countries that could
impact the use of social media data in selection both practically and legally. We
conclude by suggesting practical guidelines for employers in their use of social
media data in selection.
Keywords  Social media • Selection • Title VII • Protected classes • Discrimination 
• Wrongful discharge • Case law • International law • Right to be forgotten • Social 
media passwords
Online social media has become a major part of the employment screening pro-
cess, with a 2011 study by Reppler reporting that 91 % of surveyed employers have 
used social media websites to screen applicants. Sixty-nine percent of employers
say they have declined an applicant based on the information they found on social
media (Reppler, 2011). A Jobvite (2013) study found similar results, with 93 % of 
recruiters indicating they are likely to look at a candidate’s social media profile and
42 %   saying  they  have  assessed  a  candidate  in  a  positive  or  negative  way  after 
looking at the candidate’s social media profile. The overall picture seems clear that
many organizations are using social media in the screening and selection process
in various ways. For example, employers could use social media to read candi-
dates’ status updates and posts, look at their pictures, review their friends list, see
what pages they “like,” and view the groups they belong to, among many other
uses. Any of these methods might yield information that employers could use to
G.B. Schmidt (*) • K.W. O’Connor 
Division of Organizational Leadership and Supervision, Indiana University-Purdue 
University Fort Wayne, Neff 288D, 2101 East Coliseum Blvd., Fort Wayne, IN 46805, USA
e-mail: schmidtg@ipfw.edu; oconnok@ipfw.edu
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disqualify candidates. Such behavior poses potential legal issues when the
information gleaned by employers is legally protected or is used in a way that dis-
criminates against protected classes.
With the prevalence of social media use by organizations continuing to grow,
many questions arise about the potential legal impact of such use. While viewing
social media data during applicant screening is not illegal in the United States, it is
possible that the information gathered and/or the methods used by an organization
to  screen  applicants  may  violate  the  law  (Davison,  Maraist,  Hamilton,  &  Bing, 
2012). This has led scholars to call for the need for in-depth legal analysis of the use
of social media in selection (Brown & Vaughn, 2011; Davison, Maraist, & Bing, 
2011). This chapter answers those calls.
This chapter will review existing United States laws and legal rulings related to
employee selection and discuss how social media selection processes could lead to
potential legal problems for organizations. We will discuss the existing US case law
on social media use in the selection processes, as well as existing laws aimed at
protecting applicants and/or employees. We will then turn to the international legal
context for social media use in selection, highlighting three examples that could
have significant impact. Finally, we will discuss what we still need to learn to better
understand the legal context of social media use in selection.
13.1 Existing Legal Standards/Laws for Selection Decisions
There are many potential reasons that organizational selection processes could
result in conicts which would  lead to legal action. Williams, Schaffer, and Ellis 
(2013) examined all legal cases from 1998 to 2010 related to selection in Bloomberg 
Bureau of National Affairs (“BNA”) case briefs, which resulted in a final sample of
312. They coded the cases as to the selection tools used in the company involved
in the suit and the selection process issues alleged. The selection tools included:
biographical information blank, interview, cognitive ability test, and psychomotor
tests. The selection process issues alleged included: use of problematic criteria,
violations of the Four-fths Rule, administrative inconsistencies, personal bias or 
favoritism, lack of documentation, quota or unlawful affirmative action programs,
unfair recruiting source, and failure to  provide  accommodations.  In  many  cases, 
the selection tools used by the organizations caused one or more legal issues
(Williams et al., 2013).
While social media use in the selection process was not studied by Williams
et al. (2013), its use can also lead to legal issues for an organization. For example,
if an organization is using social media screening, but the organization lacks a
consistent selection (or de-selection) process, it could be the basis for a discrimina-
tion claim. Another example that could lead to a discrimination claim might be if
different organizational representatives are screening candidates via social media
and weighting data differently. To date, there has been sparse published academic
[AU1]
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work on the validity of using social media in selection decisions (Kleumper, Rosen, 
& Mossholder, 2012; Van Iddekinge, Lanivich, Roth, & Junco, 2013). Validation 
studies within an organization might be a crucial factor when litigating social
media selection cases and could potentially convince a court that the methods used
by the organization are, in fact, valid and job-related.
13.2 Reasons Why Organizations Might Have a Legal Duty
to Access Applicant Social Media
While much of the existing social media selection research has focused on whether
social media has helped the quality of candidate selection, there are circumstances
where reviewing an applicant or employee’s social media page may constitute a
legal necessity. For example, employer responsibility for an employee’s actions
may fall under one of a handful of potential employer liability doctrines. First,
under respondent superior, if an employee commits a tort (which is a wrongful act
which leads to civil liability) while in the course and scope of employment, the
employer can be held liable. Second, under the doctrine of negligence (or failure to
exercise reasonable care), an employer may be liable for negligent hiring, negligent
retention, or negligent supervision of an employee. Third, employer liability may
arise for violations of anti-harassment laws.
For example, in Howard v. Hertz (2014), a customer sued Hertz for Facebook 
comments that a Hertz employee posted about the customer’s race, sexual orienta-
tion, and financial status. The key to the customer’s negligence case was the legal
standard of  foreseeability. In other  words,  was  it foreseeable  to  Hertz  that their 
employee would post such comments about a customer? The court held yes. The
Hertz  employee’s  Facebook  posts  were  indeed  foreseeable  to  the  organization
because the employee had already had two previous incidents involving posts
about other customers. The district court allowed the case to proceed because the
employer should have been on notice that this employee needed better training/
supervision.
As this case illustrates, employers can be held liable for the actions of employees
that the employer knows about or should know about, even when it comes to the
employees’  personal  social  media  usage  (Morgan  &  Davis,  2013).  Employers 
screening out applicants based on social media posts in this regard may not just help
to avoid hiring potentially bad employees, but also help in avoiding hiring candi-
dates that lead to potential legal liability.
Employers also have to be aware that liability may arise for a hostile work envi-
ronment  that  exists  via  social  media.  For  example,  in  Blakely  v.  Continental 
Airlines, the  issue  was  whether  Continental  Airlines  could be  held  liable  for  the 
harassment of a female employee who alleged that defamatory statements about her
were posted on social media by her coworkers. The social media site in question
was an electronic bulletin board that, however, was not maintained by Continental 
Airlines, but its employees were required to log on to access work assignments.
[AU2]
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The court held that, even though the employer may not have an affirmative duty to
monitor the online site in the case, employers may have liability related to the
harassment if the employer had direct or constructive knowledge of the content
posted online. Moreover, if the employer derives a benet from the social media use 
by employees, then the court can consider it to be part of the employee’s work envi-
ronment. Thus, employer liability may attach (Desnlow, 2015).
13.3 Areas of Potential United States Legal Concerns When
Accessing Applicant Social Media Data
We will now explore areas related to social media use in selection that are impacted by
existing laws and court rulings. The goal of the following sections is to describe these
general areas that can have legal implications when an organization uses social media
data in the selection. Existing laws and rulings related to social media use in selection will 
be discussed, but importantly existing laws that could be applied will be described as well
as their implications. The two main areas we will look at are employment discrimination
and applicant privacy. After this section, international implications will be discussed.
13.4 Employment Discrimination
When viewing social media sites, an employer may potentially view characteristics
of applicants, such as gender, disability, age, nationality, race, pregnancy, or sexual
orientation, among others. The employer may also discover information that the
employer would never have known about the applicant without it being available on
social  media.  Information  the  employer  may  obtain  therefore  affords  a  potential 
opportunity for unlawful discrimination. In other words, the employer can discrimi-
nate against the applicant, without their knowledge, by reviewing the applicant’s
social media sites and ultimately deny the applicant an opportunity for an interview
and subsequent employment (Pate, 2012). The question is therefore raised, what legal
protections are available to employees to protect them from unlawful discrimination
through the use of social media? Though no federal statute specifically prohibits
employers from obtaining or utilizing information gathered from social media sites,
courts have been using already existing legal protections to decide social media cases.
13.4.1 Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act  of 1964 and  its subsequent amendments prohibit 
discrimination in employment against applicants, employees, and union members
on the basis of protected class characteristics. These protected classes include race,
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color, national origin, religion, and sex. Every aspect of the hiring process, includ-
ing promotion, employee benets, discipline, and discharge, is covered by Title VII 
(Civil Rights Act, 1964).
Title  VII  applies  to  organizations  with  15  or  more  employees.  However,  the 
Supreme Court has ruled that smaller employers might be subject to lawsuits led 
under Title VII under some circumstances (e.g., Arbaugh v. Y & H Corp., d/b/a The 
Moonlight Café). The Act also prohibits discrimination in most federal government
places of employment, labor unions with 15 or more members, as well as discrimi-
nation against undocumented workers (Civil Rights Act, 1964).
13.4.1.1 Who Enforces Title VII’s Provisions?
The  Equal  Employment  Opportunity  Commission  (EEOC)  is  the  federal  agency 
that monitors compliance with Title VII. Employees that allege discrimination must 
le the claim with the EEOC before a lawsuit can be brought against the employer. 
The EEOC may investigate the dispute, initiate a lawsuit, consent to an out-of-court 
settlement, or may issue a right to sue letter to the employee. The right to sue letter
allows an employee to bring his or her own lawsuit against the employer. The EEOC 
also oversees  complaints  involving  violations  of  the Americans with  Disabilities 
Act of 1990  (ADA)  and  The  Age  Discrimination  in  Employment Act  of  1967
(ADEA) (Cross & Miller, 2014).
13.4.1.2 Title VII Issues in Selection
The selection process has historically been a primary source of legal violations
involving discrimination (Williams et al., 2013). Social media discrimination in
selection is a new application of the long-standing legal principles found under Title
VII.  In  the  case  of  Gaskell  v. Univ.  of  Kentucky  (2010), Gaskell was a leading
candidate for a position as the founding director of a new observatory at the
University  of  Kentucky.  The  university’s  search  committee,  however,  found 
Gaskell’s personal website in which he expressed his religious views in an article
called  “Modern  Astronomy,  the  Bible,  and  Creation.”  The  committee,  which 
included physics professor, Sally Shafer, voiced her concern, in writing, over the
plaintiff’s reconciling of the Bible with the theory of evolution.
“Clearly this man is complex and likely fascinating to talk with,” Shafer wrote, 
“but potentially evangelical. If we hire him, we should expect similar content to be 
posted on or directly linked from the department Web site” (Oppenheimer, 2010).
As a result of this information, they chose another, less qualified candidate. Gaskell
sued, claiming a violation of his Title VII protections against religious discrimina-
tion.  Prior  to  trial,  the  University  of  Kentucky  settled  the  case  with  Gaskell  for 
$125,000 (National Center for Science Education, 2011).
Title  VII  prohibits  discrimination  on  the  basis  of  religion,  and  every  other 
protected class characteristic, so interviewers generally avoid asking such types of
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questions during interviews. This case shows that discrimination, however, can and
does result  from online searches.  It also shows that  search committees need to be 
trained in what constitutes discrimination and to avoid using online searches in such
a manner. Organizations could also advise against search committees looking online
at all. As the Gaskell case shows, there is an inherent risk of employer liability for
organizations when searching for candidate information online.
13.4.2 Americans with Disabilities Act
The  Americans  with  Disabilities  Act  (“ADA”)  of  1990  prohibits  employment 
discrimination on the basis of an individual’s disability. It applies to all workplaces 
with 15  or  more employees. The ADA requires  employers  to  reasonably  accom-
modate disabled applicants and employees unless it would create an undue hardship
to the  employer. The ADA’s recent  amendment  broadens  the  class  denitions  of 
disability. To prevail under the ADA, a plaintiff must show that he or she (1) has a 
disability, (2) is otherwise qualified for the employment in question, and (3) was
excluded from the employment because of a disability (ADA, 1990). Plaintiffs may 
seek the same remedies that are available under Title VII. These include compensa-
tory and punitive damages, reinstatement to the employee’s position within the
organization, and back pay. Repeat violators  may be ned up  to $100,000 (ADA, 
1990).
Disabilities may include health conditions and physical or mental impairments, 
and the law protects the confidentiality of such conditions. Under section 102 of the
ADA,  employers  are  required  to  treat  information  related  to  the  disability  as  a 
confidential medical record (Wright, 2014).  The  ADA  also  prevents  employers 
from taking adverse employment action based upon assumptions about individuals
who associate with people who have disabilities. For example, an employer may not
refuse to hire an applicant whose spouse has a disability based upon the assumption
that the applicant will miss work (ADA, 1990; Cross & Miller, 2014).
The ADA, however, does not require that employers accommodate the needs of 
applicants or employees with disabilities who are otherwise not qualified for the
work. Rather, if  the  individual  with  the  disability can perform the essential func-
tions of the job, with reasonable accommodation, the employer must make the
accommodation. Only if making the accommodation would cause the employer
undue hardship, meaning significant difficulty or expense on the part of the
employer, will courts allow the employer to prevail (Cross & Miller, 2014).
In Shoun v. Best Formed Plastics (2014), George Shoun brought an action under
the ADA against  his employer alleging that  an  individual  acting  on  behalf  of his 
employer disclosed confidential information about his medical condition to other
people via a Facebook post. The plaintiff, while employed by Best Formed Plastics, 
suffered a workplace injury to the shoulder. Shoun spent several months away from
work recovering. Jane Stewart processed Shoun’s workers compensation claim for
the company. She posted the following  statement  on  her  Facebook  page, “Isn’t it 
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amazing that  Jimmy experienced a 5  way heart bypass just one  month ago and is 
back to work, especially when you consider George Shoun’s shoulder injury kept
him away from work for 11 months and now he is trying to sue us.” The post stayed
on Facebook for 76 days and, according to Shoun, was viewable by the surrounding 
business community. The  court  refused  to grant Best  Formed  Plastic’s motion to 
dismiss the claim and instead held that Shoun set forth sufficient facts to allege a
violation of the condentiality provisions of the ADA (Shoun, 2014).
Though the Shoun case has not yet been decided by the court on substantive
grounds, it does stand for some important principles. First, this case shows that
there is potential employer liability for violating the confidentiality provisions of
the ADA through social media posts. Second, this case is a good illustration of some 
bad practices (i.e., mocking an employee online) which employee training could
benecially address.  Comparing the health issues  of employees, as well  as public 
shaming of an employee, can also lead to serious problems with future employee
trust and morale within the organization (Goldman, 2014). It is best to train employ-
ees to refrain from publicly commenting about one another on social media,
especially where the law already mandates strict confidentiality.
The ADA is another example of existing laws  used  in  the new realm of social 
media cases. With regard to selection of candidates, the ADAs protection begins at 
the moment the applicant applies for the job in question. Thus, employers who are
looking at social media profiles and pages to gain information about candidates
must be aware that excluding candidates based upon information gleaned from
social media about a physical or mental impairment or condition would be a viola-
tion of federal law.
13.4.3 The Age Discrimination in Employment Act
The  Age  Discrimination  in  Employment  Act  (ADEA)  prohibits  employment 
discrimination against individuals who are 40 years old and older. The Act also
prohibits  mandatory  retirement  for  nonmanagerial  workers.  The  ADEA  protects 
federal and private-sector workers from age discrimination and claims of retaliation
for complaining about age discrimination. For the Act to apply, an employer must
have at least 20 employees and the employer's business activities must affect inter-
state commerce (ADEA, 1967).
To establish the case, the plaintiff must show that he or she was (1) a member of
the protected age group, (2) qualified for the position from which he or she was
discharged, and (3) was discharged because of age discrimination. If the employer 
can offer a legitimate reason for terminating the employee, which is not pretextual
in nature, then the employer has a valid legal defense (ADEA, 1967).
Like  the  other  federal  protections  discussed  in  this  chapter,  the ADEA  also 
protects  job  applicants.  In  Nieman  v.  Grange  Mutual  Casualty  Co.  (2012)
(“Grange”), the plaintiff, Jason Nieman, applied for a job with Grange affiliate
Integrity  Mutual  Insurance  Company  (“Integrity”).  Nieman  claimed  that  he  was 
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passed over for the job based upon his age, in  violation of the ADEA.  He alleged 
that Integrity was  aware  of  his  age,  which was over  age  40,  because  the  year he 
graduated  from  college  (1989)  was  on  Linkedin.  The  court  concluded  that  there 
were sufcient facts established by the plaintiff to deny Integrity’s motion to  dismiss 
the case. This case ended in 2014, when a subsequent court held that Nieman’s
ADEA claim  failed because  the  candidate  that Integrity  did  hire was  not  signi-
cantly younger than Nieman (2013 U.S. Dist. LEXIS 47685).
Though the employer ultimately prevailed in Neiman v. Granger, this case illus-
trates how precarious ADEA claims  can  be  for  employers.  Specically, LinkedIn 
and other similar sites are tailored to professionals and job applicants, and many
users list information which can reveal their actual ages. Employers must be aware 
that the ADEA will protect candidates and employees of age 40 and over who are 
passed over for hiring and promotion, or those who are ultimately terminated due to
their ages. Having access to this information creates an extra layer of concern for 
employers, so effort should be made to make sure that personnel decisions are not
based on, or appear to be based on, age for workers who are 40 years old and older.
13.4.4 Pregnancy Discrimination Act (1978)
The Pregnancy Discrimination Act of 1978 (PDA) amends Title VII to prohibit sex 
discrimination on the basis of pregnancy. It is an area of the law that is constantly 
developing, as pregnancy discrimination claims are on the rise and recent cases are
being considered by high courts, such as the US Supreme Court. In 2014, sex and 
pregnancy discrimination lawsuits accounted for 55 % of  all Title VII  claims led 
(McGowan, 2015).
The  PDA  prohibits  discrimination  on  the  basis  of  pregnancy,  childbirth,  or 
related medical conditions and applies to employers with 15 or more employees, 
including state and local governments. The Act states that women who are pregnant
or affected by pregnancy-related conditions must be treated in the same manner as
other applicants or employees with similar abilities or limitations.
In 2012, the EEOC issued a warning against pregnancy discrimination to employ-
ers who screen job applicants’ social media profiles. This warning reminded
employers that if an employer learns that a job applicant is in the early stages of
pregnancy from that applicant’s social media, then does not hire that applicant, the
applicant could plausibly accuse the employer of discriminating based on her preg-
nancy  (Phillips  &  Associates,  2012).  By  the  same  token,  the  EEOC  reminded 
employees to be aware what information they are voluntarily posting on social
media. Announcing pregnancies, posting ultrasound pictures, or posting pictures
from pregnancy photo shoots are all common occurrences and are easily discover-
able by employers.
So  in  the  social  media  data  screening  process,  HR  professionals  are  likely  to 
encounter information that may inform them that a candidate is pregnant or likely
pregnant. This can be through posts made by the applicant, or by the applicant’s
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social media connections. Organizations need to make sure that those who do the
screening do not use pregnancy status as a negative factor or as a reason to remove
a candidate from a search. If a candidate is de-selected due to pregnancy, violating 
the PDA may result in signicant penalties for the organization.
13.4.5 Sexual Orientation Legal Protections
There is currently a limited amount of protection at the federal level for private
employers for discrimination based upon sexual orientation, though governmental
workers are protected from sexual orientation or gender identity discrimination
under the Civil Service Reform Act of 1978. A July 15, 2015 ruling by the EEOC 
“recognize[d] that elements of the following issues are emerging and developing…
coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex 
discrimination provisions,  as  they  may apply.” The EEOC went on  to  reason that 
sexual orientation discrimination is linked to sex discrimination, which is protected
under Title VII (National Law Review, 2015). At this time, it is unclear whether the
courts will ultimately agree with the EEOC; however, a signicant number of states 
already do provide sexual orientation protection for workers at the state and local
level.
When using social media sites for information about candidates and employees,
it is important for employers to know the laws of the states that they do business in.
For multi-state corporations, it is entirely possible that workers may not be consid-
ered to have been discriminated against in one state, but the same set of facts will be
considered discrimination in another. An example of a state where sexual orienta-
tion is a protected class is New York. New York bars discrimination based on sexual
orientation in employment, housing, and public accommodations (The Sexual
Orientation Non-Discrimination Act, 2003).
Some states go even further and also protect gender identity as a protected class.
By including gender identity in their state statute, transgender individuals may not
be discriminated against in employment, beginning at the time the potential
employee applies for a position. This protection continues throughout employment
(ACLU, n.d.).
In Macy v. Holder (2010), the EEOC held that discrimination against a transgen-
der employee  is akin to sex discrimination. In this  case, Mia Macy, a transgender 
woman, was employed as a police detective by the city of Phoenix. Her supervisor 
informed her that the federal Bureau of Alcohol, Tobacco, Firearms and Explosives 
(“ATF”) was accepting applications for a ballistics expert in a crime laboratory near
San Francisco, and that she had the right qualifications for the position. While in
Phoenix, Macy was still presenting as a man, but Macy had plans to soon transition 
to a female identity.
In 2010, she  relocated  to  San  Francisco and applied  for  this  job.  Macy spoke 
with the Director of the ATF  about  the  position,  and  she  was  given  details  about 
the position’s salary and benets. According to Macy, the Director told her that she 
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would get the position so  long as she passed her background check. Macy subse-
quently told the San Francisco office via e-mail that she was in the process of tran-
sitioning from male to female.  Five days later, Macy received an e-mail from the 
office stating that the position in the ATF lab no longer existed due to federal budget
reductions. However, Macy later learned that the position was actually not cut and 
was lled  by  someone else. In 2011, Macy led a discrimination claim  and  won, 
establishing the legal precedent that discriminating against individuals who present
non- conforming  expressions  of  gender  also  violates  Title  VII  (Grossman,  2012;
Macy, 2010).
From the selection perspective, organizations need to make sure that the personal
views of employees related to sexual orientation and gender identity do not result in
social media data on sexual orientation or gender identity factors being used to
disqualify candidates. This is legally crucial in states where existing legal protec-
tions for discrimination based on sexual orientation and gender identity exist. So
organizations need to be up to date on such laws in all states where they employ
workers.
13.5 Privacy Rights
Facebook, Google, Yahoo, etc. have all been accused of violating user’s right to
privacy (Cross & Miller, 2014). This is due to a common misperception that there
is an inherent right to privacy for US citizens in all matters. In addition, many social 
media users believe that setting one’s privacy settings on a social media site ensures
that they have the site’s assurances of privacy when they post. However, this is not 
the case.
Instead, courts have held that the legal standard in privacy cases is whether or not 
an  individual  has  a  “reasonable  expectation”  under  the  circumstances.  In  social 
media cases involving privacy arguments, courts have consistently held that users
do not have a reasonable expectation of privacy because social media websites are
publicly available. Moreover, social media users are voluntarily giving up their pri-
vacy by posting their personal information online (Carlson, 2014).
For example, in Nucci v. Target (2015), Target employee Maria Nucci suffered 
a slip and fall at work. After a lawsuit was filed against Target, Target requested
Nucci’s Facebook pictures. Target argued that the photographs were directly rele-
vant to the lawsuit and would show Nucci’s physical state prior to and following the
accident. Nucci argued that she had a reasonable expectation of privacy in her
Facebook photographs because she had her privacy settings set. Nucci even deleted
three dozen pictures from her account following Target’s request. The court ordered
Nucci to produce and give all of her Facebook pictures to Target from a 2-year
period surrounding her fall, including those that she had deleted. The court went on
to emphatically hold that there can be no reasonable expectation of privacy in social
media accounts.
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So while workers may express concerns about their employer viewing their
social media data and feel they should have privacy protections to what they post,
to date there is little existing legal protection or case law that has been applied to
such privacy concerns. In the next section, we will raise exceptions to this, which 
involves state laws that address employers that request applicant and employee
social media username and password information.
13.5.1 Laws on Asking for Applicant Social Media Passwords
While general privacy protections on social media are nonexistent, a developing
employer practice of requesting applicants’ social media password as a condition of
employment or as part of the hiring process has led to legislation being proposed
and passed in many states banning the practice. As this practice gained ground, state
legislatures began drafting laws to protect applicants, and in 2015, alone 23 states 
introduced legislation on this matter. These laws have mostly been argued as
protection of privacy rights for applicants and current workers in organizations
(National Conference of State Legislatures, 2015).
Approximately, 20 states currently have laws prohibiting employers from requir-
ing  applicants  and  employees  to  disclose  their  passwords  (Drouin,  O’Connor, 
Schmidt, & Miller, 2015; Pate, 2012). For example, Illinois’ password protection 
law provides that “it shall be unlawful for any employer to ask any prospective
employee to provide any username, password, or other related account information
in order to gain access to a social networking website where that prospective
employee maintains an account or profile.” A handful of other states also extend
this protection to prohibit academic institutions from requesting that a student or
applicant log  onto  a personal social media account  (National  Conference of State 
Legislatures, 2015).
There are some elements that appear in the majority of these laws. The first
element found almost universally is that it is illegal for employers to require appli-
cants or current employees to disclose to the organization social media user names
and passwords. Disclosing such information cannot be required. Another common 
element is that organizations cannot require applicants or current employees to add
the organization, a supervisor, or an administrator as a social media contact (National
Conference of State Legislatures, 2015). In such a case, this mandatory connection 
could be a way for the organization to access the applicant’s social media content
that is available to connections. Another element commonly found in such legisla-
tion is making it illegal to require applicants or current employees to change social
media privacy settings. In this case, it could be removing all privacy settings, so the 
organization could see all content posted or even requiring workers to only have
extremely strict privacy settings. A final common element is banning retaliation
against applicants or employees who refuse to share password or user name infor-
mation with an employer (National Conference of State Legislatures, 2015).
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Some state laws will have unique elements, as well. For one example, the law passed
in June  2015  in  Oregon makes  it  illegal for  the  organization  to  require applicants  and
employees to create or maintain personal social media accounts or to require that the
employer has the right to advertise on the persons’ personal social media account (National
Conference  of  State  Legislatures,  2015). Organizations located in multiple states will
need to become familiar with the intricacies of laws in all states they have employees in.
There certainly are additional limitations. For example, employees in states where
there is no existing legislative protection have no safeguard for social media data or other
information that  is openly available on  the Internet (Pate, 2012). The existing password
protection laws also typically do not protect an employee who is logging onto social media
using  an  employer-provided  device  or  sometimes  even  an  employer-provided  Internet 
service.  Employer  monitoring  under  these  circumstances  is  mostly  unregulated. 
Organizations need to know well what the laws cover (and do not cover) to be legally
compliant. Such password laws also, of course, do not stop an employer from viewing
social media content that can be found in google searches and content that was posted
publicly.
Worth noting here is that from an organizational perspective, having applicant user
names and passwords would most likely result in the organization acquiring the most
accurate and encompassing social media data to use in the selection process. In such a 
case, the organization would have great confidence that they are looking at the right
person’s account(s) and be able to see all content that is relevant to inform the selection
process. This assumes, of course, that some applicants don’t have multiple accounts at
the same site and the one whose password is shared isn’t the one that is sanitized with
regard to its content and/or is set up for impression management purposes. Such a
possibility does exist, and in such cases, having applicant passwords may not be practi-
cally useful since the social media data gained is potentially inaccurate.
Having all applicants’ social media user names and passwords would also avoid 
the difference in information found between applicants with different privacy
settings. The employer could see all content from all applicants as opposed to just
the content posted publicly. One might think this greater amount of information
could help overall predictive quality of social media data. So here we see a law that
puts applicant privacy rights above potential business interests. The question of the
effectiveness of social media use in selection is dealt with in other places in this
book, but such password laws do restrict how organizations can engage in obtaining
social  media  data  on  candidates.  Different  governments  may  put  the  balance  at 
different levels, as we will show in our next section on international differences in
laws related to selection in social media.
13.6 International Differences in Laws Related to Selection
Use in Social Media
While this chapter has focused so far on the US legal context with regard to social
media use in employee selection, many such decisions will be made in other country
and international legal contexts. For multinational organizations, the legal context
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business is done in not one country, but many different countries with different and
potentially conflicting legal standards. We will shortly examine three examples of
laws in non-US countries that can impact social media screening from both legality
and practicality standpoints.
In 2010, the German Parliament discussed a part of a general law about  workplace 
privacy with a particular provision that would restrict the use of social media for
selection screening. The bill would allow employers to search for publicly available
data about a client and view applicant information on professional social network-
ing sites like LinkedIn, but would specically ban  employers from using personal 
social media sites like Facebook. So the German law would have significantly
limited what employers in Germany could look at (Jolly, 2010). While this bill did
not pass the German Parliament, future bills that may pass could have huge impact 
on how social media screening can be done in particular country contexts. We will
now look at three existing laws that could potentially impact social media
selection.
13.6.1 European Union “Right to Be Forgotten”
Recent court rulings in the European Union have potentially serious impact on the 
type of information that organizations might find while using social media data for
selection. A court ruling in May 2014 from the European Union’s highest court held 
that EU citizens have the “right to be forgotten” online for their past behaviors that 
have been already resolved or are currently out of date (Strietfeld, 2014). The ruling
held that citizens of the European Union have the right (in particular circumstances) 
to ask Internet search engines to remove links with personal information about them 
when that information is “inaccurate, inadequate, irrelevant, or excessive” (European 
Commission, 2014, p. 2). They note that the right to be forgotten is not absolute and
would need to be balanced with other personal rights and thus decisions need to be
made  on  a  case-by-case  basis  for  requests.  Important  to  note  here  is  that  the 
information is not itself removed from the Internet, rather it no longer shows up in 
search results from search engines like Google.
Citizens of the European Union le a petition to have such content removed from 
search engine results from a search engine provider. Currently, the  search  engine 
providers themselves are making such determinations on a case-by-case basis,
although the European Union privacy regular can be involved in such decisions as 
deemed warranted (European Commission, 2014). Google reports that so far there
have been requests for more than 733,000 URLs to be removed, and Google has 
agreed to the removal of approximately 238,000 URLs of the requested URLs from 
search  results  (Lomas,  2015a).  Data  analysis  by  Reputation  VIP,  a  reputation 
management company  that  offers a service  to  help  European citizens  make  such 
requests, found that requests made through their service were rejected by Google
approximately 70 % of  the  time  (Lomas,  2015b). So, currently it would seem the
majority of requests are being refused.
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Reputation VIP recently  released  a  report  on  what  types  of  content  links  have 
been  removed  from  the  61,500  requests  they  have  administered  through  their 
application. The most common categories of reasons for requests was “invasion of
privacy” (58.7 %), which involves sites sharing things like personal addresses, reli-
gious afliations, or political party membership (Lomas, 2015b). From the selection
perspective, some of this information would be irrelevant and other information
could lead to finding out individual characteristics that might run afoul of equal
employment opportunities laws in the United States and elsewhere. The second
most  common  category  of  reasons  was  “damage  to  reputation,”  (11.2 %)  which 
depending on why it is damaging might be useful for organizations in screening out
processes (Lomas, 2015b). For example, an applicant being delinquent in payments
for previous business dealings might be an information an organization would want
if it was hiring someone to be responsible for a financial position.
The report also has categories of what types of sites the material was present on when
the request was accepted. The largest specific category was social media sites/commu-
nities (20 %) with 6552 URL links removed from search engines (Lomas, 2015b). For
organizations using search engines to find candidate information on social media, these
removals might be material that would have led to the candidate being screened out.
One point of contention so far between Google and the European Union privacy 
regulators has been whether web content search links should be deleted from only
European Union  country-specic Google search engines  sites or from the  general 
search engine site Google.com. The European Union regulators are currently argu-
ing that removal needs to be for the general Google.com domain as well, otherwise
people in the European  Union  can  circumvent  the  ruling  by going to the general 
Google.com  domain  for  search  (Lomas,  2015a). Google has refused to do so.
Removal from  general Google.com search could  have signicant implications for 
employers and individuals worldwide who are being able to access such informa-
tion. So for now, on a practical level, organizations using search engines to find
social media material can use the general domains over country-specific domains
but the European Union’s stance is that this is a loophole that should be closed.
The “right to be forgotten” has clear implication for social media use in the
screening of candidates. If past indiscretions are removed from search results, they 
likely will not appear in the screening processes done by organizations. For now,
loopholes exist through using other country-specific sites or international sites and
the majority of removal requests are being rejected by Google. This could certainly
change, however, and the intent of the European Union regulators seems so  far to 
be that these “loopholes” need to be closed. As currently applied, there has not been
any discussion of whether organizations should be able to use such removed mate-
rial if they  use  a  loophole.  Making use illegal  regardless  of  how  it is discovered 
could certainly be a future way the “right to be forgotten” would be applied.
While this European Union ruling  has  not  been  applied  to  international social 
media cases, it could certainly have future implications as well as potentially act as
a model for laws passed in other countries or even in states in the United States. The
ruling is likely to have more far-reaching consequence as time passes and more
content is created and requested to be removed.
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13.6.2 China Internet Censorship Laws
In the case of China, the biggest challenge to using social media data in the selection
process is the signicant legal restrictions related to Internet use and what sites can be 
visited. Starting in July 2009, Facebook and Twitter have been permanently blocked
within  China’s  borders  and  use  by  Chinese  national  elsewhere  is  also  illegal  (The 
Economist,  2013).  The  overall  program  of  censorship  and  Internet  restrictions  has 
been called by some “The Great Firewall,” although China has a complex web of laws 
and tools that involve both public and private sector operations (The Economist, 2013).
In 2010, a white paper from the Chinese government offered an idea of “Internet 
sovereignty”  that  all  Internet  users  in  China,  both  citizens  and  foreigners,  were 
required  to  abide  by  Chinese  laws  and  regulations.  Chinese  Internet  companies 
have also been required to sign a pledge of self-regulation and professional ethics
that built off the ideas of the white paper (Xu, 2015).
Much  of  the  enforcement  and  censorship  is  done  through  what  is  called  the 
“Golden Shield Project.” Through the Golden Shield project, the Chinese  govern-
ment takes actions like restricting bandwidth, filtering search results by keywords
that  are  seen  as  not  in  the  best  interest  of  China,  and  blocking  access  to  certain 
websites such as the previously mentioned Facebook and Twitter (Xu, 2015). Site
access can also be blocked for short-term periods such as during politically sensi-
tive  events  and  anniversaries.  Chinese  Internet  users  can  attempt  to  use  various 
circumvention applications and other means (ex. virtual private networks) to view
blocked  websites,  although  the  Chinese  censorship  enforcers  are  consistently 
working to shut down any such workarounds (The Economist, 2013).
A more  recent  believed  addition  to  China’s censorship  program  has  been  dubbed
“The Great Cannon.” The Great Cannon acts as a middle man for web trafc such that, 
when a user in China tries to go to or search for a website, the program hijacks trafc to 
that individual website IP address and replaces normal benign web content with mali-
cious malware content (Weaver, 2015). The malware installed then is used to make that
user’s computer an unwilling participant of denial of service acts against a website. The
websites attacked to date have both been websites with pages related to getting around
the Chinese governments censorship applications, the New York Times’ Chinese mirror 
site, and the anti-censorship organization GreatFire.org. The Chinese government has 
not publicly acknowledged the existence of the Great Cannon or their use of it, although 
the analysis of Marzak et al. (2015) shows strong support for such a connection, includ-
ing evidence of its co- location with the Great Shield Project servers.
Marzak et al. (2015) looked at the nature of the Great Cannon soon after its rst 
identied action in March 2015. Their technical report goes into great detail on the 
technical aspects of this firewall application and evidence that it originates from the
Chinese government. One of  the  most  serious  aspects  of  their  report  is  describing 
how the Great Cannon could be deployed in powerful ways with small technical and 
software changes. Instead of targeting Internet users going to particular websites, the 
program could be used to  target particular Internet users. In such a case, the Great 
Canon could target particular users who access even one unencrypted site that uses a 
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server in China for the website or the ads on that site and deliver malicious malware 
to that person’s computer. A user very well might not realize they are accessing a site
using a server in China (Marczak et al., 2015). For a person within China, it would 
be very difcult to get on the Internet without interacting in some way with an unen-
crypted website or web content that would be vulnerable to the Great Cannon.
Another potential application noted by Marzak et al. (2015) is the widespread inter-
ception of all unencrypted emails within and to those in China or using China- based 
servers  and  the  potential  addition  of  malicious  attachments  to  such  emails.  Email 
could be manipulated  using  the  Great Cannon  to  spread  malware  to support  future 
Denial of Service attacks or other actions. While there is no evidence of such use cur-
rently, Marzak et al. (2015) suggest that the existing architecture of the Great Cannon 
could support such uses with relatively small technological modifications.
China’s extensive  censorship  system  has major  implications  for  organizations 
using social media in selection. One of the most basic logistic issues is that Chinese 
citizens who are applicants are unlikely to have common social media presences
with Facebook and Twitter blocked and LinkedIn available but open to government 
censorship (Newman, 2014). This means that organizations will need to look at
Chinese social media sites instead for information, potentially hurting comparabil-
ity to candidates in others parts of the world. With the extensive censorship laws and
enforcement, Chinese citizen  workers  are  less likely to  openly  share  information 
through social media sites, which means social media data may not exist for the type
of behaviors organizations are using for screening out procedures.
The use of social media in the selection processes is even more complicated if
the evaluator is located in China, which could certainly happen with multinational 
organizations. The  Internet  restrictions  apply  to all people in China regardless of 
citizenship (The  Economist, 2013). This means that, from a practical perspective,
accessing applicant’s social media profiles on major sites like Facebook or Twitter
while  the  evaluator  is  located  in  China  would  be  extremely  difcult.  Even  with 
workaround methods, the examination of social media content on such banned sites
would be illegal and could result in legal consequences for the employee who uses
them and the company that has asked him or her to do so. Thus, in the China context, 
social media use in selection processes might not be practical due to the existing
censor-related laws and enforcement.
The Great Cannon  offers  a  different  challenge  to  organizations operating  in 
China  or  interacting  with  individuals  in  China.  The  security  of  organizational 
data could  be compromised by The Great Cannon. Searches  for relevant candi-
date information could lead to malware being downloaded on organization’s
computers and networks, spreading beyond computers in China to other countries 
and users. In theory, this could lead to condential information being spread in a 
way  similar  to  what  was  seen  in  the  Sony  Pictures  hack  (Elkind,  2015).
Condential information release could also lead to lawsuits and lost  customers. 
To deal with such potential threats, organizations need to consider implementing
measures that make basic online practices and email systems encrypted and
improve the overall security of their online systems. Unfortunately, there are
currently no easy solutions to implement to resolve all the issues inherent in
programs such as the Great Cannon.
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13.6.3 United Arab Emirates Defamation Laws
The severity of United Arab Emirates defamation laws and how they are applied to 
social media content was highlighted internationally in the legal case of Ryan Pate, 
an  American  working  for  an  UAE  company  who  posted  on  Facebook  criticism 
about his  company. While  the  Facebook post  was  made,  Pate  was in  the  United 
States; upon returning to the UAE, Pate was arrested and faced a criminal charge of 
defamation against his employer punishable by up to 5 years in jail and a fty thou-
sand dollar fine (Altman, 2015). He ultimately was able to get the charges dropped 
due to intervention by his United States Congressman and the US State Department 
(Ingles, 2015). Most workers, and certainly those who are citizens of the UAE, are 
unlikely to be that lucky.
This criminal charge was due to existing severe defamation rules within the United
Arab Emirates. Defamation that causes harm to the person the statement is about in 
any oral or written form is a criminal offense. This is quite broadly defined and just
the presence of criticism may be enough to violate these laws (Kelly & Proctor, 2012).
If the person’s statements are given on behalf of or seen to represent the organization, 
the person’s manager could be similarly charged. Company computers or devices can 
also be accessed in the investigation of such charges (Kelly & Proctor, 2012).
These strict and broad defamation laws offer both practical and legal conse-
quences for organizations using social media in the selection processes. From a
practical standpoint, more strict standards for screening out candidates may be
warranted. An applicant who defames a previous employer, complains about an
experience as a customer, or even makes a political statement may be in danger of
defamation charges and the accompanying imprisonment. Such defamation behav-
ior by an employee could lead authorities accessing company devices and the
person’s manager potentially being arrested as well. Organizations may want to take
extra efforts to avoid such situations and rigorous social media screening could help
this goal. Of course, making generally more strict standards of social media screen-
ing may be more likely to lead to lawsuits or perceived unfairness by candidates in
other countries without such defamations laws.
13.6.4 Overall Practical Legal Guidelines for Social Media
Selection Internationally
When considering social media selection internationally, deep understanding of
current national and international laws and how they are applied is essential. We
highlighted three examples above, but there are many other examples that could at
least potentially impact the social media selection process. Organizations need to
review existing social media-related case law and existing selection-related case
law for all nations they have workers in.
It must  be  noted  that  it is  possible,  and  perhaps  even  likely, that  laws  of  one 
nation will conflict with those of others with regard to how social media use in
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selection could  proceed.  Different countries can make different decisions  on  how 
privacy, national interests, and business interests should be balanced. As such,
universal procedures and implementation for using social media data in selection
internationally may not be practical or legally possible. Such a state of affairs may
mean organizations need general guidelines for social media data use that can be
modified by each particular country’s legal context.
13.7 Overall Practical Legal Guidelines for Social Media
Data Use in Selection
For organizations, it is important to consider how they can reduce legal risks related
to using social media data in selection. Based on existing laws, there are some general
actions organizations can take in engaging in social media date use for selection that
should help reduce legal risks. One of the most importance aspects is to create clear
procedures, standards, and criteria for how social media data will be considered. As
noted in Williams et al. (2013), inconsistent hiring processes accounted for 22 % of 
legal  cases  and  problematic  criteria  for  17 %  of  legal  cases  in  their  sample.  Clear 
procedures for use are crucial for those in HR doing the searches to engage in them in 
a consistent manner. If they are inconsistent, there is potential for the use to not only 
be ineffective but also to allow the biases of the employee doing the search to effect
decisions, leaving the organization open to lawsuits related to bias or favoritism.
Organizations need to clearly define what criteria they are using and why they
are being used. This is especially true as social media and online-related matters are
generally new territory for the United State legal system. As such, judges and juries
may not have significant experience with this selection method and could see it as
potentially suspect. The tool of social media data itself may be seen by some
(i.e., judges or applicants) as unfair in the selection context. As such, organizations
need to clearly define what criteria they have in examining social media, and in the
best case scenario, have validation study data on its effectiveness in predicting
workplace outcomes. To date, validation data on the effectiveness of social media
use for  selection  in  the  academic  realm  has been  mixed  (Kleumper  et  al.,  2012;
Stoughton, Thompson, & Meade, 2013; Van Iddekinge, Lanivich,  Roth, & Junco, 
2013). We recommend that organizations perform validation studies for their own
use of social media data in screening processes and the employee outcomes the
social media data predicts.
With potential concerns that examining applicant’s social media data will reveal
protected class information that could lead to charges of discrimination against
organizations, organizations may consider measures to limit such risks. One such
way to do this would be to decouple who collects social media screening informa-
tion from who makes employment decisions. In this case, one person would be in 
charge of collecting social media data and then handing over only relevant informa-
tion to the person making the selection decision, removing all protected class infor-
mation found in social media content.
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LinkedIn allows user proles to be downloaded in pdf form in a stripped-down 
version  that  does  not  include  pictures  or  post  history.  Having  one  HR  worker 
download the profiles to pdf and provide them to the person making employment
decisions would remove potential protected class information that could be discov-
ered through  the  prole picture and an examination of  individual  LinkedIn posts. 
This may not help for age-related discrimination claims, however, as information is
provided about college years and years in the workplace. While no actual birth date
is provided, an approximate one could be estimated using employment and educa-
tion dates. This ability to estimate the age of candidate was part of the Shoun v. Best
Formed Plastics (2014) case mentioned earlier in this chapter. LinkedIn prole pdf 
download would not have alleviated the issue alleged in that case. Thus, download-
ing pdfs of LinkedIn proles would alleviate some, not all concerns. Also important 
is that other sites that might be looked at, such as Facebook or Twitter, lack this
feature and thus would need more manual (or application based) scrubbing of
protected class information. Organizations might consider creating in-depth and
clear procedures of how social media data from sites examined would have pro-
tected class information removed before the relevant social media data is passed
onto evaluators.
Companies may  also  consider  having a third party vendor do  the  social media 
data collection process. One example of a company doing this is Inquirehire (http://
inquirehire.com/services/social-media-screening). As noted by Morgan and  Davis 
(2013), however, third party vendors doing such screening might be considered
“consumer reporting agencies” under the Fair Credit Reporting Act and be subject 
to restrictions based on that law and other consumer protection laws. Regardless of 
choices made here, procedures used should be well-specified and followed consis-
tently to avoid lawsuits and negative legal judgments.
13.8 Future Considerations
There are still a number of important issues related to the legality of social media
data use in selection processes that will need to be examined in the future. One
particularly important issue is that laws and court rulings related to social media use
can change over time. Higher court rulings, such as those of the US Supreme Court, 
could have huge impact on the legality of elements of social media data use in selec-
tion. Federal laws would also have major impact and state laws have the potential
to contradict each other as states balance businesses interests and individual privacy
interests differently from state to state. Human Resource professionals need to keep 
abreast of new laws and rulings as they happen. Organizations may want to have
staff or retain legal counsel to keep up to date on how new rulings may potentially
impact the legality of current social media selection processes.
The international legal environment for social media data in selection is an area ripe
for future examination. This chapter focused on the US legal context and gave three
examples of other national laws that may impact social media data use in selection, but
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a systematic review across nations would be beneficial. Such legal analysis could help
organizations to determine how to structure social media data using selection systems
that could pass legal standards across all countries an organization has existing employee.
In-depth examinations of laws relevant to social media selection methods at the 
country level would be extremely helpful as well. One example is the recent book of
Scaife (2014) on Internet-related law in the United Kingdom, which doesn’t exam-
ine social media data use in selection directly, but does offer a comprehensive review
of the  existing UK laws relevant to  social media. Examinations of law  relevant to 
selection could be done at the country or region level. This would be especially cru-
cial if organizations followed a strategy of having unique social media selection
processes in each country, with such processes tailored to each country’s unique set
of laws. Such a system could lead to the highest levels of successful compliance with
individual country laws, with the potential downside being a lack of consistency in
selection procedures across countries. Such tradeoffs might be needed in the current
legal environment where there is significant legal variance between countries.
13.9 Conclusion
This chapter begins the examination of existing case law in the United States related
to social media data use in the applicant selection process. To date, only a handful
of cases have directly dealt with this area, but there is a significant body of law and
rulings that can have significant impact on social media data use in selection. This
chapter also discussed examples of laws in countries outside the United States that
could have significant impact on how social media data use in selection proceeds
both practically and legally within those country contexts. Social media data use for
selection is prevalent in organizational practice (Jobvite, 2013) and we would expect
such major use will lead to more legal cases in the future. This chapter begins to
build understanding of existing law so that organizations can be prepared for the
current legal environment and have some forewarning of other areas that might
ultimately be relevant.
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Author Queries
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levels.
AU2 Please check if the sentence “The social media site in question 
was…” is ok as edited.
AU3 Please note  that  references  “Hern (2015) and  Pagnattaro  and 
Peirce (2007)” are not cited in text but provided in the reference 
list.  Please  provide  in-text  citations  or  delete  them  from  the 
reference list.
AU4 Please provide  the  year of publication for  reference  “ACLU. 
(n.d.)”.
AU5 Please  provide  the  volume  number  for  references  “Carlson 
(2014) and Van Iddekinge et al. (2013)”.
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There is no question that in the modern Internet ecosystem, involving people, things, and services (IoPTS) social media and data privacy are central in the workplace. Everything from employers' use of social media to select candidates, to workplace social media policies (with possible disciplinary action), to data privacy concerns, has had an impact on organizations in both positive and negative ways. A multitude of court cases involving employees' personal use of social media has led to new applications of existing laws, as well as a handful of state law protections enacted to protect employees. Data privacy extends into questions about how to handle the information coming from the many devices now connected to organizations. In this chapter, we discuss this rapidly evolving new Internet ecosystem, involving people, things, and services (IoPTS), specifically as it relates to social media, law, data privacy, mobile devices, the workplace, and certain aspects of the life cycle of employment.
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There is disagreement in the academic literature regarding the use of social media in selection and recruitment. To get a sense of the degree of disagreement, we conducted a qualitative survey of 13 experts in this domain. Results of the survey revealed four principle challenges for researchers and three principal challenges for practitioners in this area. Almost all experts recommended against the use of social media in selection at this time due to measurement issues, legal issues, and others, but approximately half stated that their recommendation could change in the future depending upon pending research. Several experts stated that the use of social media in recruitment was less risky than in selection and recommended it explicitly. All but one expert recommended adopting an interdisciplinary approach. From our results, we highlight four priorities for future research, involving the identification of useful information from social media, strategies for acting on that information, fairness and ethicality, and international implications.
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With the advent and popularity of social networking sites, the boundaries of the relationship between the employer and employee/prospective employee have stretched well beyond the workplace and working hours. Predictably, this relationship expansion has led to uncharted adversarial scenarios between the respective parties. Unfortunately, in this new, vibrant cyber world, employment law is struggling for deference and attention. Notwithstanding this ostensible indifference, each phase of the relationship is heavily impacted by social network media. Applicant recruitment, information gathering and applicant selection stand to be impacted by the social network communications made by employees or prospective employees. This article examines whether present and proposed law protects job applicants from potential, unlawful discrimination resulting from the employer’s use of social media in its applicant recruitment, information-gathering and applicant selection processes.
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Purpose This paper reviews a decade of employment litigation to illuminate the most legally dangerous selection devices and employment practices. Design/Methodology/Approach A sample (n = 312) of court cases drawn from 10 years of Bloomberg BNA case briefs was analyzed to determine which selection tools (e.g., biographical information blank, interview, cognitive ability test, and psychomotor test) and which selection processes (e.g., violations of the four-fifths rule, administrative inconsistencies, lack of documentation, failure to provide accommodations) are most at risk for litigation for unfair employment practices. Findings Results demonstrate that while some selection tools do attract legal scrutiny, dangerous hiring practices such as favoritism against protected classes and improper human resource documentation put employers at far greater risk of suit. When considering cases settled outside of court and those that continued to trial, the data reveal that employers lose employment discrimination cases at a rate nearing 90 % and suffer an average payout of over $1.5 million per case. Implications Just as legal challenges once drove the search for selection tools free of adverse impact, the current legal landscape demonstrates the necessity of fair and consistent selection processes. This paper provides evidence of common mistakes in implementing selection systems—mistakes that lead to costly legal battles. Originality/Value This paper reduces cumbersome legal records into useful evidence of trends in recent employment law cases. Selection system designers and organizations who implement them will benefit from avoiding the risky hiring practices presented in this paper.
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With the advent and popularity of social networks sites, the boundaries of the relationship between the employer-employee/prospective employee have stretched well beyond the work-place and work-hours. Predictably, this relationship expansion has led to unchartered adversarial scenarios between the respective parties. Unfortunately, in this new, vibrant cyber world, traditional employment law considerations are struggling for deference and rumination. Notwithstanding this ostensible indifference, each phase of the relationship is heavily impacted by social network media. Applicant recruitment, information gathering and applicant selection stand to be impacted by the social network communications made by employees or prospective employees. This article examines whether present and proposed law protects employees’ and prospective employees’ rights from potential, unlawful discrimination resulting from the employer’s use of social media in its applicant recruitment, information gathering and applicant selections processes.
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Organizations are increasingly relying on Internet searches and social networking websites to uncover detailed and private information about job applicants. Such Internet screening techniques have the potential to provide additional information beyond that found using traditional screening approaches. However, questions regarding the legality and appropriateness of this practice, as well as issues regarding the standardization, reliability, and validity of the information obtained, need to be addressed. The current work describes these issues associated with Internet screening and provides recommendations to help ensure this practice is used appropriately in organizations. Suggestions for future research on Internet screening are also discussed.
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Job applicants and incumbents often use social media for personal communications allowing for direct observation of their social communications "unfiltered" for employer consumption. As such, these data offer a glimpse of employees in settings free from the impression management pressures present during evaluations conducted for applicant screening and research purposes. This study investigated whether job applicants' (N=175) personality characteristics are reflected in the content of their social media postings. Participant self-reported social media content related to (a) photos and text-based references to alcohol and drug use and (b) criticisms of superiors and peers (so-called "badmouthing" behavior) were compared to traditional personality assessments. Results indicated that extraverted candidates were prone to postings related to alcohol and drugs. Those low in agreeableness were particularly likely to engage in online badmouthing behaviors. Evidence concerning the relationships between conscientiousness and the outcomes of interest was mixed.