When you turn to Facebook and Twitter to learn more about an individual you are considering for a job, you open yourself up to substantial legal risk, says Kailee Goold, an associate at Kegler, Brown, Hill + Ritter.
“Social media forums — Facebook, Twitter, LinkedIn and others — can reveal what is referred to in the legal world as an applicant’s protected status,” Goold says. “Gender, pregnancy, race, disability and even religion are bits of information you can collect about a person by way of a social media search.”
If you decide not to hire the applicant, and there is reason to believe you were negatively influenced by a protected status revealed in your social media research, your company could be looking at a discrimination lawsuit.
“People just don’t understand the liabilities and risks they are taking when they do this without a sound process in place,” Goold says.
Smart Business spoke with Goold about how to legally protect your business when using social media to make personnel decisions.
Is it legal to use social media to check out job candidates?
There is nothing outright illegal about viewing publicly available information as part of an informed hiring process and then making a hiring decision based on legitimate factors (e.g., not race or gender). But there are ways snooping on social media can easily go awry. For starters, it’s very dangerous to look through these sites and make assumptions if you are not familiar with them or don’t understand how they work.
So you should get educated on the various platforms and their purpose or get someone in your company who has that knowledge to do your social media research.
In fact, the solution that affords you the most protection against a lawsuit is to appoint a neutral nondecision-maker to handle this task.
How does using a nondecision-maker protect you legally?
It gives you a good defense. Let’s say you (as the hiring decision-maker) Google someone’s Facebook page and you see that the person is blind (or part of another protected class). You may be biased, even implicitly, against that person as a result of viewing this information. Even if you are not biased against the applicant, the applicant could still make the argument if you hire someone not similarly disabled.
So set up a barrier to avoid this issue altogether. To start, identify the legal disqualifiers that are valid reasons to not hire someone for the specific job. If violative of company policy, things like illegal drug use and use of hate speech may qualify and give you a nondiscriminatory reason to deny employment.
Once you have identified these legal disqualifiers, hand them off to someone who is not involved in the hiring decision. If the candidate is ultimately denied the job and says it was because you found something about his or her disability on their Facebook page, you can honestly say that it wasn’t a factor in your decision.
What else do employers need to know?
First, you can’t ask for passwords to someone’s social media accounts. You can’t interview the applicant and say, ‘Give me your password to Facebook,’ nor can you have the person sit at a computer in front of you and watch over his or her shoulder as they enter it. Similarly, you can’t create a false identity and try to friend the person on Facebook or connect on LinkedIn to gain access to information that is not publicly available.
Second, if you do find something in your research that you think is a valid disqualifier, print it out because this information can disappear in an instant. You want to have some evidence or documentation in the event the applicant brings a discrimination claim. You want proof that they were denied the job for a legitimate nondiscriminatory reason.
Third, and maybe most important, you should ask yourself if social media research is really necessary when it comes to hiring. Is what you’re going to find on Facebook or Twitter relevant to the job? If you’re looking for someone to manage your social media presence, maybe that makes a lot of sense. Otherwise, what are you looking for that you couldn’t get in an interview? Sometimes, you’re just asking for trouble.
Insights Legal Affairs is brought to you by Kegler Brown Hill + Ritter