Don’t Let Technology Add Risks to Process of Screening Applicants

The practice of screening applicants through the internet – particularly by using Google and social networking sites – is becoming more and more commonplace. But employers need to understand there are times when they just shouldn’t look.

First, using social networking sites to screen applicants before interviewing them should be avoided. Instead, decisions about whom to interview should be made based on the applications and resumes submitted. The legal risk is a claim that candidates were chosen discriminatorily based on information that otherwise wouldn’t have been available – for example, that an applicant has a child with a disability and will need accommodations under the Americans with Disabilities Act or that the employer discriminated on the basis of the applicant’s race.
Employers who choose to screen applicants using social media before interviewing them must make sure the decision-maker isn’t the one doing the digging. Instead, make a list of things the employer is looking for (for example, applicants participating in illegal activities) and have someone in another department look at the applicants’ pages.
Instruct that person to look only for things on the list and not to report anything else. This helps dispel the inference that protected or inappropriate information is being used in the hiring decision. Be sure that searches are conducted on a nondiscriminatory basis, such as doing them for all applicants, all applicants for a certain position, or all conditionally hired applicants.
Require that all protected-class information be screened out before the applicants’ information is submitted to the employees responsible for hiring. Ideally, the recruiter should be able to avoid pursuing information on protected classifications and activities. Employers may even want to consider making the ability to conduct effective computer searches an essential function of the HR recruiter position.
To dispel the notion that an employer is doing something sneaky, post a notice on the application and other pre-employment materials advising applicants that online resources will be reviewed. Be sure to disclaim any interest in private issues or information.
Once a candidate has been interviewed, HR may want to use social networking sites to find more information to help decide who will be the right fit for the company. This creates the potential for a discrimination claim, whether it’s based on disability, religion, sexual orientation, military status, or other protected characteristics, but there are ways to mitigate the risk. The most important way is through consistent hiring decisions. If something is discovered on a social network site that causes concern, discuss it with the applicant and give him or her a chance to explain.
Second, employers need to keep in mind that many states prohibit requiring an applicant or employee to provide social media passwords. Even in states without such laws, it’s likely too risky to ask.
Also, don’t try to gain access to an applicant’s private or password-protected social networking pages through another employee’s account or a dummy account. The risk of accessing or relying on protected information is an invasion-of-privacy claim, but employers can look at information that is publicly available on the internet as long as it’s related to the job or is a business necessity.
Another risk for employers is a potential violation of the contract of a particular social network. For example, Facebook’s terms of service limit use of its site to “personal, noncommercial purposes.” It remains to be seen whether using Facebook for a background check violates that term of service.
Finally, creating a false identity on a social network in order to gain access to a job applicant’s personal information may cause other legal problems. It potentially brings into play the Computer Fraud and Abuse Act and the Stored Communications Act, two federal laws that contain criminal sanctions.

Guidelines

Here are some guidelines for using the internet in the hiring process:

• Get the applicant’s consent before conducting an internet search. Application materials should include a form for the applicant’s consent to a background check; some simple changes could be made to include internet searches.
• Conduct searches only on final candidates – the applicants remaining after the field has been narrowed and at least one round of interviews has been completed.
• Never use covert means to gain information. Even if it isn’t illegal, it looks sneaky (because it is).
• If something is learned that may tip the balance, consider asking for more information from either the applicant or a reference.
• Be prepared to explain the rationale for rejection of the applicant.