Employers, beware the siren’s song of social media searches

November 01, 2012 - by: admin 0 COMMENTS

by Edward Sisson

It’s all out there—waiting for an employer to discover. Job candidates have spent years documenting their lives online. They pose for pictures at parties, check in at every restaurant and bar they visit, “like” products and celebrities, post and comment on videos, and rant about politics. It’s tempting to supplement the interview process and get to know the “real” candidate by turning to social media. All that information is online calling to you, and it’s only a few clicks away. Should you listen or ignore the call? What are the risks? What should you do to avoid crashing into the rocks of a costly discrimination lawsuit? Read on to find out.

Background

Are you pregnant? Do you have children? Are you married? What is your religion? How old are you? What is your sexual orientation? How do you feel about labor unions? Are you sick? What is your race?

You know not to ask job applicants those questions, and you train your employees not to make prohibited inquiries. Social media can create problems and lead to lawsuits because the answers to those questions are readily available on job applicants’ Facebook and Twitter pages. Accessing that data can make you vulnerable to claims of discrimination, particularly when an applicant claims you didn’t hire him because you used information from social media to learn his race, marital status, or other protected information and make a discriminatory decision against him.

It’s an uncertain new world out there

As you know, employer access to applicants’ and employees’ personal social media accounts and your attempts to manage what employees say about their jobs on social media are hot topics these days. Government agencies and courts are attempting to apply existing laws to new technology and forms of communication. Legislatures are considering and passing laws in an attempt to balance privacy interests with the reality of very public social media communications. You probably have heard a lot of discussion about laws that prohibit you from requiring that an applicant provide his social media passwords so that his use of social media can be reviewed during the hiring process.

Commentators on the issue have been warning that the Equal Employment Opportunity Commission (EEOC) is on the lookout for employers that misuse social media in the hiring process. For example, a job applicant can claim he wasn’t hired because of his age, which the employer discovered only when it viewed his Facebook page. Similarly, a job applicant may claim that she wasn’t hired because an employer learned she was pregnant after reading her tweets.

If an applicant makes protected information publicly available, an employer may argue that it hasn’t done anything wrong by viewing it. However, if an applicant files a lawsuit, he will claim that the employer may not have done anything wrong by viewing the information but did do something wrong when it considered the information in a discriminatory manner and chose not to hire him. With the law still developing, do you want to respond to that claim? Do you want to defend your hiring practices in a courtroom?

Meanwhile, many potential employees want employers to find them online. They choose to display their ideas and writing ability on social media, which they use to make professional connections. Many of today’s job applicants are conducting their job searches using social media, and companies don’t want to miss out on those potential employees.

Bottom line

With responsible policies that protect both the employer and job candidates, social media can be a valuable tool in the recruitment and hiring process. So what should you, the employer, do? You should treat social media searches like a job interview. If you can’t ask a question during a job interview, don’t turn to social media for the answer to that question. Train your staff to recognize and understand the dangers of using social media in the hiring process. Make sure they understand that although more information is available than ever before, you don’t want them to discover it, and if they do discover it, some of it may not be considered during the hiring process. If you use social media wisely, you can help your company find qualified candidates and avoid the dangers of costly discrimination lawsuits.

Edward Sisson is an associate with Sulloway & Hollis P.L.L.C in New Hampshire. Prior to joining the firm, Mr. Sisson served as a Surface Warfare Officer in the United States Navy. He is member of the Employers Counsel Network and a contributor to New Hampshire Employment Law Letter. You may contact him at esisson@sulloway.com.

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