Robert Rauschenberg, Cy + Roman Steps (IV)

Social media screens for potential hires automatically put employers on the wrong side of the law

Last month, when LinkedIn product manager Udi Milo announced a data-rich upgrade to the site’s “who’s viewed your profile” feature, it must have seemed like a cruel joke to one woman in Ohio. Stalked on LinkedIn by her former boss and without privacy settings to banish individual harassers, Anna R. had become ensnared; as she struggled to find a new job using the site, she risked disclosing her personal information. Reported first by Social Times and then by BuzzFeed, Anna’s story is peculiar because even as “LinkedIn Makes It Even Easier to Find Out Who’s Stalking You,” the social network still lacks a basic block tool.

Far from a buggy nuisance, this kind of openness is LinkedIn’s hallmark feature. As BuzzFeed’s listicles overlord Ben Smith chirped, “LinkedIn’s stalker problem is not totally unrelated to how awesome it is as a reporting tool.” Unlike the more social networks whose overriding ethos is YOLO, the employment site only wants to see the front, business-side of your mullet. By showcasing CVs and work affiliations, LinkedIn operates as a professional safe space. Here, you know for sure prospective employers are looking. As a designated network for the interaction between us and our would-be bosses, LinkedIn ostensibly guards against the rampant and potentially illegal practice of the invisible employment screen.

Where traditional job screenings involve criminal background checks and credit inspections, verification for corporate-worthiness now includes social-media sleuthing. Recruiters Google candidates’ names, peruse Facebook, and sieve the Twitter stream. The HR cliché is true enough: They’d be dumb not to search you. According to a representative of the US Equal Employment Opportunity Commission, 75 percent of recruiters are obliged by their companies to conduct web searches on prospects, and 70 percent of recruiters have jettisoned candidates for information found online. The hiccup, though, is the legally protected information to which recruiters might inadvertently be exposed.

Non-discrimination laws prohibit employers from asking job applicants certain questions. They’re not supposed to ask about things like age, race, gender, disability, marital, and veteran status. (As you can imagine, sometimes a picture alone can reveal this privileged information. These safeguards against discrimination urge employers to simply not use this knowledge to make hiring decisions.) In addition to protecting people from systemic prejudice, these employment laws intend to shield us from capricious bias and whimsy. While casually snooping, however, a recruiter can’t unsee your Facebook rant on immigration amnesty, the same for your baby bump on Instagram. From profile pics and bios, blog posts and tweets, simple HR reconnaissance can glean tons of off-limits information.

One familiar response to networked exposure goes like this: If you were stupid enough to solicit Oxycontin on Craigslist, rip your old boss on Tumblr, or post your mischief to WorldStar, then you really don’t deserve the job. But this weary mindset ignores the seemingly benign data we constantly supply to social networks.

As the playfully illuminating tech writer Mat Honan writes: “Let's say you're a California-based employer and you do a basic background check on a job candidate. In scouring the Web, you discover a brand new Tumblr update that says ‘I'm pregnant!’ Holy impending mandatory paid time off! But you're good a corporate citizen. That doesn't matter to you. Yet for unrelated reasons, you hire a different candidate. Meanwhile, the rejected candidate sees your company's IP address in her analytics program. She assumes you didn't hire her because she's pregnant. She sues. Now what?”

This isn’t a marijuana sullied Flickr page or the betrayal pornography of Snapchat screenshots; what Honan is talking about isn’t illegal or even anti-social or unsavory behavior. If you’re a newly married man, a Muslim with a headscarf, of a certain sexual orientation, pregnant, your prospective employer isn’t supposed to know. But social media screenings reveal all that and more.

Along with forcing recruiters to gaze with eyes wide shut, straddling legal liability and ignorance, invisible employment screens deny American workers the robust protections afforded by the FTC and the Fair Credit Reporting Act. The FCRA ensures that prospective employees are notified before their backgrounds and credit scores are verified. Employees are free to decline the checks, but employers are also free to deny further consideration unless a screening is allowed to take place. What's important here is that employees must first give consent.

When a report reveals unsavory information about a candidate, and the employer chooses to take what’s called “adverse action,”—like deny a job offer—the employer is required to share the content of the background reports with the candidate. The applicant then has the right to explain or dispute inaccurate and incomplete aspects of the background check. Consent, disclosure, and recourse constitute a straightforward approach to employment screening.

Contrast this citizen-empowering logic with the casual Google search or to the informal, invisible social-media exam. As applicants, we don’t know if employers are looking, we’re not privy to what they see, and we have no way to appeal.

As legal scholars Daniel Solove and Chris Hoofnagle discuss, the amateur Google screens that are now a regular feature of work-life go largely unnoticed. Applicants are simply not called back. And they’ll never know the real reason.

One way out—proposed by Solove and Hoofnagle—is for companies to simply disclose searches to candidates. Or, at least notify applicants that one is taking place. (This would be especially practical for those industries where social media use is in the job description.) Internet queries are notoriously unreliable; as one identity is searched, the data from people with similar names often mixes in accidentally. Disclosure would provide protection from mix-ups, and riffs off the sound transparency model established by the FCRA.

A market solution has emerged as well. Mirroring third-party companies that conduct official background checks on behalf of employers, firms like Social Intelligence offer FCRA-compliant Web screens. SI scans only for relevant criteria; their reports show things like violent activity, drug use, and sexually explicit material, but little else. As Honan found out when he asked SI to initiate a background check, every image of him was redacted—even his hands—so as to not inform Honan’s potential employer of his ethnicity. Stated by Sterling Infosystems, another business that offers a suite of background reports: “Traditional searches tell you what a candidate has done and what they were caught doing—a Social Media Search tells you what they are doing and what they haven’t been caught doing. However, indiscriminate searching of social media increases your liability and risk of disseminating protected class information.” This third-party method, just like the disclosure proposal, attempts to formalize the social media screen and discourage the invisible, unaccountable Internet search.

While mandated disclosure or hiring a background service is onerous, the alternative is a perversely arbitrary recruiting process. As tech observer John Herrman and sociologist Jenny Davis explain, the ecosystem of social media networks is in flux. Younger users are grasping towards the ephemeral and away from permanence. It’s not that Facebook profiles are disappearing; rather, particular networks are used to conceive and showcase different parts of a user’s personality. For businesses to operate without a standard screening policy, the combination of nuanced social networks becomes a minefield of wayward prejudice.

It’s telling that LinkedIn makes most of its money not from premium memberships or advertising, but from software—the talent-finding products it sells to companies. Touting 225 million profiles, the professional network has amassed an irreplaceable database. To read this month’s Fortune cover story is to know that LinkedIn has a mountaineer’s ambition. The site’s leaders hope to map out the mismatch between training disparity and job opportunity on a global scale. “Imagine a platform that can digitally represent every opportunity in the world,” LinkedIn’s CEO Jeff Weiner said.

Similar to Zuckerberg’s project, as the user-generated content on LinkedIn becomes more involved and granular, the vault of information becomes more valuable to recruiters and advertisers. Users, in turn, are urged to interact with LinkedIn to a higher degree (more connections, endorsements, channel subscriptions) to appear most employable. Depending on your propensity for disclosure and your affinity for LinkedIn, this can feel like smart networking or a bullying nudge. But even with mounting pressure to keep up your LinkedIn profile—with an updated picture too—it still seems preferable to indiscriminate social media screens, where relevance isn’t even relevant.