You’re going to find out interesting things about potential employees online, says attorney Eric Meyer—like how often they update FaceBook—and some of what you find is going to be information you would NEVER ask about in an interview.
What are you going to find out online? Gender is typically no surprise, says Meyer. It’s likely you already knew that, but you’ll surely find out about age and race, and you are likely to find out about things like disability or pregnancy. None of those factors may be used as the basis for an employment decision.
And don’t forget about state and local law—there are other characteristics, like gender identity or sexual orientation, which are protected characteristics in certain jurisdictions, says Meyer, a partner with Dilworth Paxson LLP in Philadelphia. Meyer’s remarks came at BLR’s Advanced Employment issues symposium held recently in Nashville.
Another bad outcome from searching social media is that you may get a false impression. For example, says Meyer, say you see a picture of the candidate in a wheel chair. You assume a disability, but actually the person was just being released from the hospital or is participating in some sort of fundraiser and there is no disability. However, having seen the picture, you may have set yourself up for a “perceived as disabled” claim.
A further concern relates to GINA. During a social media check, you may gain some medical history. For example, a note that says, ‘Did a cancer walk today in honor of my mother.”
Unfortunately, as they say, you can’t “unring the bell.”
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Meyer notes a recent study in which employers listed the following reasons for not screening candidates on social media:
- Legal risks (66%)
- Information isn’t reliable (48%)
- Information doesn’t relate to the job (45%)
Meyer offers “the big 3” legal issues in vetting candidates on social media:
- Discrimination. As mentioned above, discrimination is an easier charge to bring once employers find out about protected characteristics. (It’s a good defense if you can prove you didn’t know about the protected characteristic, so finding out about them is clearly a step in the wrong direction.)
- Organized labor (NLRB). Unions are very aggressive about protecting the right to engage in protected activity on social media outlets.
- Fair Credit reporting Act (FCRA). If a third party is involved in doing your search, you must comply with all the notification requirements of FCRA. Meyer suggests that even if you are doing your search in-house, you notify the candidate that the hiring decision will be contingent on satisfactory background checks including social media.
If you do intend to deny someone employment based on what you find on a social media site, like, for example evidence of drinking or drug use, “You may want to give the candidate a chance to explain,” Meyer says.
One way to minimize problems, he adds, is to use an intermediary such as socialintelligence.com, an organization that does the social media background check, and then ‘scrubs” the report of protected information before passing it on to you. Prior to authorizing the check, employers use a checklist to indicate what they want checked.
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Other Legal Issues
In addition to the “big three,” Meyer notes other legal issues that may come to bear:
- Negligent hiring. If someone writes “I hate women” on his page, and you hire and there is a subsequent harassment issue or physical attack, you could be on the hook for negligent hiring.
- First amendment. There’s no issue for private companies under federal law, but there may be a state free speech statute to worry about.
- Pivacy laws. Generally, these are not much of a factor, says Meyer, but he suggests that you not ask candidates for passwords and don’t try to bypass restrictions. Don’t send a “friend” request, and don’t ask for any information that you wouldn’t ask for in a face-to-face interview.
- State criminal background check laws. Check your state laws.
- Off-duty conduct. Many states have off-duty conduct laws that restrict employers from making employment decisions based on legal off-duty conduct.
- Implied contracts. Be sure that you are not creating any sort of implied contract in organizing for your social media search.
- Terms of use. Websites have terms of use that may be violated, particularly if you are gaining access under false pretenses.
In tomorrow’s Advisor, how to set up your search program to minimize exposure, plus an introduction to a unique 10-minutes-at-a-time training program.