Can I get into legal trouble for recruiting on Facebook?

Can you get into legal troubles when you recruit on Facebook?


Lisa D. Grant Harpe, Ph.D.
Industrial Psychologist and Senior Consultant
Peopleclick Authoria Research Institute

She is the author of:

Social Networks and Employment Law: Are you putting your Organization at Risk?
With the excitement around social networking, it is easy to think of these tools as a natural source of reference during your hiring process. They are a new source of potential candidates plus information about your applicants, all at your fingertips. It sounds like recruiting nirvana, but beware the pitfalls that come with using these sites. Using social networks as your only source for candidates could be discriminating against potential applicants that do not have social networking profiles. Using social networks as a source of information about your applicants could cause you to discriminate intentionally, or unintentionally, based on protected-class status such as race, gender, religion and so on, or on the basis of one’s leisure activities if they do not agree with your organization’s culture. Although there are areas of sensitivity when using these sites, you can follow the recommendations provided to ensure that you are using social networking as part of your hiring process without discrimination and in compliance with federal laws.


JIM: Thanks so much for your time Lisa! I appreciate your expertise in this topic. Its kind of a sensitive topic.

LISA: I’m happy to be here. It’s a fascinating topic – at least for me.

JIM: So, I know you’re like this Employment Law guru and all that, but I want my readers to know it too. So if you would, for a moment, remove all modesty and tell us about yourself. Make yo’ mama proud!

LISA: Guru? Hmm. Kind of like that. Dr. Lisa Harpe, Employment Law guru. Has a nice ring. But actually, I am an Industrial Organization Psychologist, which means that I have expertise in developing and evaluating employment systems such as recruiting, hiring, promotion, training, pay, and performance appraisal systems. I currently work in the employment discrimination arena, primarily by conducting statistical analyses of employment data to evaluate HR systems for evidence of employment discrimination. I also advise companies on policies and procedures that may assist them in their efforts to comply with anti-discrimination regulations. I might do this work for a federal contractor anticipating a federal audit, a federal contractor who has been issued a notice of violating anti-discrimination regulations, a plaintiff or defendant in a Title VII discrimination lawsuit, or a company who just wants to know if they have any vulnerabilities.

JIM: Okay, let’s do this…

LISA: I’m ready.

JIM: With so many people on Facebook, its like a siren song to recruiters. I know Recruiters use Facebook to find candidates everyday as since that is the case, what is the big deal? Should companies ban the use of social networks as a recruiting source?

LISA: I certainly understand Facebook’s appeal to recruiters. Facebook and other social networks seem like sources of millions of potential job candidates. However, using social networks like Facebook to find a person to fill a position poses a number of challenges, not the least of which is complying with anti-discrimination regulations. Let me mention just a few of the potential problems.

First, recruiters gain instant access to protected class status – that is, race, gender, and perhaps age and disability – when they look at a profile picture on Facebook. In addition, the Info page on Facebook is basically a list of what not to ask during the selection process – date of birth, gender, race, religious affiliation, marital status, etc. Finally, items posted to one’s Wall on Facebook could provide information that might be used in a discriminatory manner such as postings related to pregnancy or religious activities. A recruiter may then consciously or somewhat unconsciously use inappropriate information to make decisions about job candidates. For example, if a recruiter finds out on Facebook that a job candidate has just become pregnant, would he/she take that into account? If the recruiter uses that information and selects someone else who is equally or less qualified but not pregnant, the recruiter could be charged with discrimination. Also, if a recruiter uses Facebook in the recruiting and hiring practice differently depending on whether the job candidate is male or female, minority or non-minority, older or younger in age, the recruiter could face charges of discrimination.

Recruiters should keep in mind that Facebook is a social network. People join Facebook to interact with others, primarily in a social and not a business manner. This leads to questions about the accuracy of the information on Facebook. So a recruiter may violate anti-discrimination regulations using Facebook in the selection process while getting inaccurate information, hardly a good tradeoff.

I would caution employers about using social networks as recruiting sources. I might even suggest that they avoid their use. However, there may be ways to utilize these sources in a manner that ensures quality, job-related information and complies with anti-discrimination regulations. If a company wants to use social networks in the recruiting and hiring system, it needs to recognize that the use of Facebook in this manner subjects it to regulations that not only prohibit discrimination but also require maintenance of certain records related to recruiting and hiring.

JIM: In some cases, a third party (Sourcers) create lead lists of prospective candidates and then passes them on to a Recruiter. In this way, the Recruiter is oblivious to what is on the Facebook page. Is this a good practice?

LISA: Using a third party to source candidates through social networks may be a good way to avoid claims that you used race, gender, age or disability information easily found on Facebook or other social network sites to make hiring decisions. A company could instruct a third party to search for candidates with certain job-related characteristics and submit those candidates to them. Since the third party is the one searching Facebook, only it will see the information related to the candidate’s protected class status. Even better, a company should have specific written instructions in its contract or agreement with the third party stating that the third party will only search for job-related information and will adhere to all anti-discrimination regulations when sourcing any given position.

JIM: Can you cite any real world examples of Recruiters/ Companies who were sued over alleged Facebook discrimination?

LISA: I am not aware of any employment discrimination suits related to the use of Facebook or other social networking sites for recruiting and hiring. However, there have been lawsuits related to employee dismissal based on information found on an employee’s social networking site or blog and an employee’s right to privacy.

It will likely take some time for lawsuits to arise over the use of social networking in recruiting and hiring. Recruiters have not been using social networking in this capacity for very long. In addition, a recent survey by Microsoft and Cross-Tab suggests that job candidates don’t realize that recruiters are reviewing their Facebook profile or tweets to make employment decisions. As job candidates and the government become aware of how companies are using these social networking sites in the recruiting and hiring process, we may see greater scrutiny and claims of discrimination.

JIM: Facebook has a lot of privacy settings! If jobseekers want to be found via Facebook, wouldn’t it be good practice to simply share their info (which could be a resume) and nothing else with recruiters and others who happen along their page and then share more of themselves (wall, photos, etc) when a less business / more casual relationship is established? (Wouldn’t this also protect Recruiters?)

LISA: I agree wholeheartedly. One thing that my research on social networking and employment law has made me realize is the importance of protecting your personal information on social network sites. Facebook members (and members of other social networks) should carefully consider what types of information they want available to recruiters as well as to the public in general. Do you really want everyone to access information regarding your family and personal life? Do you really want employers to see pictures of you at last week’s party or see posts from friends about your impending nuptials or surgery? If you choose to post non job-related information, you may want to set your privacy settings to discourage the use of this information in the employment decision-making process, whether you are looking for a job or not. (As I said, many employers are reviewing social networking information on current employees and could use that information to make employment decisions such as dismissal or promotion.)

JIM: If someone sues a Recruiter for what is seen on Facebook, couldn’t a Recruiter counter sue on the grounds that the user did not set their privacy settings? After all, all kinds of things pop-up when someone does a Google search.

LISA: I am not aware of any laws that would allow a recruiter to sue someone for not setting their privacy settings on a social network. It is a recruiter’s (and the employer’s) responsibility to ensure that the recruiting and hiring processes are conducted in an anti-discriminatory manner.

(Phone rings)

JIM: Oh, you know what? My pal Karen Mattonnen is calling me on the other line me with more questions for you. She’s not a lawyer, but she is a bit of an employment law groupie? Is that cool?

LISA: Sure.

JIM: Okay, one sec’…

(Jim puts Karen on speaker phone)

KAREN: Say a Recruiter finds someone on Facebook, then discovers a blog or website that was cited on that Facebook profile that shows the candidate in a wheelchair. The candidate detects (via IP Address) that the recruiter visited the page. Long story short, candidate sues because he believes the company discriminated against him.

JIM: Oh come on! That’s a bit farfetched!

KAREN: It could happen.

JIM: Is the average jobseeker going to even know how to do that?

KAREN: If you have a blog you know about IP addresses.

JIM: Lots of people have blogs and are clueless about IP addresses.

KAREN: So can I finish my question please?

JIM: By all means… (excuse us Lisa)

KAREN: Yes, please excuse Jim…

JIM: Whatever!

KAREN: So if the candidate can see that a Recruiter visited his blog on a certain day and he did not get hired, does the candidate have a case for suing the Recruiter and/or company?

LISA: If the candidate claims that information in the blog identifies race, gender, age, national origin, religion, disability or other protected class status and claims that the Recruiter used this information to reject him or her, the candidate can file a discrimination lawsuit. Proving the merits of the claim, however, may be difficult.

KAREN: I have to go, texting you my next few questions…

JIM: Hold on one sec’ if you would Lisa?

LISA: All right

(Music playing in background – The theme from Laverne and Shirley)

JIM: Okay, I’m back.

LISA: So are you two okay?

JIM: Hah! Yeah, Karen and I are like two siblings in the back seat of the car. We drive each other crazy but its all done in love. So you ready for the next few questions?

LISA: I think I can handle a few more.

JIM: Does a Recruiter have to tell a candidate that they are not going to hire them based on what was on their Facebook account? Why or why not?

LISA: No. There is no legal requirement for an employer to tell any job candidate why they were rejected. However, providing this kind of information may be a good candidate relation move. Perhaps this person or someone he/she knows might be a good candidate for some other opening.

JIM: Okay, say I own a recruiting firm but I have a lot of contract recruiters working with me from home. Would I be liable for anything they do on social networks? (Again, these are contract and not perm employees)

LISA: I’m afraid so. An employer is responsible for complying with employment regulations related to any recruiting and screening activities undertaken to fill its positions, regardless of who is doing the recruiting and screening. Employers are also responsible for complying with anti-discrimination regulations, including the related record-keeping requirements, when third party recruiters or vendors help them fill open positions.

(Phone rings)

JIM: Ugh! Its Karen again with another question. Do you mind?

LISA: Boy. You really are like bickering siblings, aren’t you? I don’t mind another question.

JIM: You rang?

KAREN: Are you still talking to Lisa?

JIM: Yes.

KAREN: Did you ask her the question I gave you?

JIM: Yes.

KAREN: Did you really?

JIM: Yes!

KAREN: Can she hear me? Lisa did he ask you…?

LISA: Ask me what? I didn’t know you had any questions for me.

JIM: Very funny! Yes I did Karen.

KAREN: Oops! I sowwy.

JIM: Mmm-hmm… Do you have another question for our guest?

KAREN: Yes, I do. But first do you accept my apology?

JIM: Yeah, yeah, whatever…

KAREN: Am I still your sister whom you adore?

JIM: No comment.

KAREN: Come on! You can comment on that.

JIM: Lisa, will you represent me in this matter? I must step away.

LISA: Although not an attorney, for the immediate situation, I will be representing Jim. My client wishes to express that in this and future matters that you are his adored sister.

KAREN: Aww… That Jim Stroud, he is so sweet!

JIM: Back! Thank you so much for spending time with us Lisa! If anyone (besides Karen) has any additional questions about Unemployment Law, especially as it relates to Social Networks, how can they connect with you? Twitter, Facebook or telephone?

LISA: Given my background, I keep a pretty tight lid on my Facebook profile so email would be best.

KAREN: This was great! Let’s do it again soon.

JIM: Minus the bickering.

LISA: Actually, the bickering just makes me think of my brother. I think I’ll go give him a call. Thanks for having me. I’d be happy to come back.

JIM: Let the record show that Lisa Harpe is a good sport and knows her stuff.


Karen Mattonen is an experienced, successful recruiter who operates her own business and is actively involved in many industry organizations and activities. Her recruiting career began with Snelling Corporation. In 1998, after a successful tenure as a recruiter with Snelling, Karen struck out on her own, founding Advanced Career Solutions (ACS). ACS focuses on recruiting for the HVAC Industry. Karen has achieved accreditation as a California Accredited Consultant (CAC) through California Staffing Professionals. She has also gained her Certified Staffing Professional Certificate (CSP) through American Staffing Professionals. (

Karen has a new and future-oriented vision of what recruiting can and should become: a profession we can be proud of for its ethical standing, professional conduct and ability to build great organizations. Her doing-well-by-doing-right philosophy is shaking up the status quo in an industry that needs to be shaken. She does this with conviction, leadership, and a distinctive voice that cries out for change.

Karen was a co-creator of the landmark webinar event EEOC Discrimination Debate. This event featured senior members of the Equal Employment Opportunity Commission (EEOC) and staffing industry experts discussing and debating difficult issues about discrimination in today’s workplace environment. Company executives, hiring managers, recruiters, and human resource professionals from across the United States were invited to participate in the free Webinar and live panel discussion. Karen also served as one of the panelists on the discussion team in the March, 2006 event.

As co-host of the popular podcast – The Recruiters Lounge, Karen discusses her frank opinions on the recruitment industry with her co-host, Jim Stroud.

Jim Stroud is a “Searchologist” with an expertise in the full life-cycle placement of Executive and Technical personnel, Recruitment Research and Competitive Intelligence. He has consulted for such companies as Google, Siemens, MCI and a host of start-up companies. During his 3-year tenure with Microsoft, he served as a Technical Sourcing Consultant and was a regular contributor to Microsoft’s Technical Careers Blog. He is presently a Social Media Development Manager for EnglishCafe – the premier English learning community for global professionals which has English quizzes, online classes and more.

In March 2010, Jim Stroud sold The Recruiters Lounge to TRU Conferences. He is remaining involved with The Recruiters Lounge during this transitional period. Jim Stroud is also the producer of The Searchologist, a website, magazine and video series that teaches lead generation strategies for Recruiters.

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