Social media is everywhere (particularly in an election year). And because virtually all job applicants have access to social media on their phone or personal computer, this means virtually every job applicant has created a social media footprint. This social media content can be very insightful for the hiring process so long as it is collected in a way that avoids legal liability.

At the outset, it is important to understand the reward vs. risk dichotomy for using social media in the hiring process. The reward for searching social media content of job applicants is that you can find “deal breaker” material that can help avoid making a bad hire. The examples are plenty. There was the applicant to a daycare who posted on Facebook: I start my new job today. But I absolutely hate working at day care... Lol, it’s all good, I just really hate being around a lot of kids.” Or the applicant to a tech company who tweeted about getting a job offer but then complained about the commute “and hating the work.” Both of these comments, applicants had their job offers rescinded, which was good news for the employer because they were never going to be employee of the month.

However, there is a risk with searching social media content for job applicants. The primary risk is that employers can easily (and inadvertently) learn information they would normally go out of their way to avoid. For example, information about age, disability, pregnancy, or union affiliation. All good HR folks know to avoid asking questions about those topics in an interview, but they could accidentally stumble across this information while searching an applicant’s social media accounts.

So the question is – how do you harness the rewards of an applicant’s social media content while avoiding the legal risk? A good start is to remember these three tips:

1. Be Consistent: Employers can avoid liability by searching the same social media sites for all applicants (and document the searches). Such consistency will help to avoid claims of discriminatory searches.

2. Insulate the decision-maker: Federal and state laws are clear that certain protected characteristics like race, gender, religion, disability, pregnancy, union affiliation, etc., cannot be considered when making a hiring decision. Therefore, hiring decision-makers should not be conducting the social media searches, which could result in inadvertently discovering a protected characteristic. Rather, other staff members should perform the searches and create a report which culls out any information relating to characteristics which are protected by law. This allows the decision-maker to make a hiring determination without any knowledge of protected characteristics.

3. Do not “friend” applicants to obtain information. Employers should not friend applicants to obtain their social media information. Similarly, employers should refrain from requesting social media passwords from applicant in order to obtain information.

When employers keep these three things in mind during the hiring process, they can harness an applicant’s potential “deal breaker” information, while protecting from inadvertently gathering information regarding characteristics protected by law.

ADAM BARTROM is a partner the Labor and Employment Department of Barnes & Thornburg LLP’s Fort Wayne office. He can be reached at adam.bartrom@btlaw.com or 260-425-4629.

ADAM BARTROM is a partner the Labor and Employment Department of Barnes & Thornburg LLP’s Fort Wayne office. He can be reached at adam.bartrom@btlaw.com or 260-425-4629.

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