I read a fascinating series of posts this week by Forbes journalist, Kashmir Hill, who first wrote on Monday morning about a recent study published in the Journal of Applied Social Psychology. That study asked HR professionals to view the Facebook pages of hundreds of college students and rate their employability based on what was contained on those pages. Ms. Hill began with the proposition that checking an applicant’s page before an interview “may be a fairly accurate reflection of how good they’ll be at the job.” She spoke with one of the study’s authors, who referred to certain “personality red flags”:
“[A] person with obvious mood swings, who is overly emotional in their postings would not be an attractive candidate. Meanwhile, a person with a lot of Facebook friends who takes a lot of crazy photos would be rated as extroverted and friendly – which are attractive qualities in a candidate.”
Ms. Hill’s second post on Tuesday is entitled “What Employers Are Thinking When They Look At Your Facebook Page”. Her admonition: “Like it or not, Facebook and other sites like it are becoming the digital proxies for our real world selves.” Ms. Hill’s descriptions of the study’s actual rating categories, and the comments she received from readers of her first post, are definitely worth perusing.
Employer Take Away: What should you as an employer take away from this development?
I agree with the part of Ms. Hill’s posts that reflect the tension existing in today’s reality – That employers do look at social media activity when making employment decisions, and that employees do not believe that what they write and depict online is reflective of the whole picture of themselves. However, while Ms. Hill accurately notes that “[o]f course, there are some legal questions to think about before jumping into someone’s Facebook page,” your company would be wise not to minimize those legal questions simply because you are essentially a bright-eyed kid entering the amusement park that is online information.
The legal world – the legislative, judicial and executive branches, intent on balancing the tension – has not yet totally caught up to today’s realities. Until it does, and there is definitive guidance, the key for you as an employer continues to be to fight the urge to be trigger happy and form instantaneous judgments solely based on what you see through social media. Be careful, as it is unlikely that the decision makers in your organization have psychology degrees, and what may appear as “obvious mood swings” could turn into a claim that your company regarded an applicant as “disabled”.
Takeaway questions, then: (1) Have you accessed the social media information lawfully? (2) Who is accessing the information on your company’s behalf? (3) What information is truly relevant to your decision process, and how are you separating the relevant from the irrelevant/unlawfully considered? (4) Are you appropriately documenting your decision process? (5) Have you verified the reliability of the information?
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by 
Fantastic job on the work!
I would think that a person judged to have mood swings could be considered for a position in politics. The gist of this comment is that certain personality types fit certain jobs. An extrovert, for example, would wither and die if all they were reuired to do was to sit at a computer and document files. A quiet person might not be a good fit for a job in say sales. Overall I don’t think that anyone can be judged fully from their facebook account.