These days, it is more likely than not that a potential employee has a social media presence. Should this presence and its contents play a role in determining whether your company should hire that person? Although there are ample business reasons for the use of social media in pre-employment screening, potential pitfalls exist for such screening as well.
These pitfalls include obtaining information that may be unlawful to consider in any employment decision, such as the applicant's race, religion, national origin, age, pregnancy status, marital status, disability, sexual orientation, gender expression or identity and genetic information. Because this information is often prominently displayed on social networking profiles, even the most cautious employer may find itself an unwitting defendant in a lawsuit. It can be a case of too much knowledge.
To minimize the likelihood of a charge of discrimination, employers should consider assigning a person not involved in the hiring process to review social media sites (pursuant to a standard written search policy), to filter information and only forward information that may be lawfully considered in the hiring process.
Employers should keep records of information reviewed and used in any employment decision, and be sure that any information learned from social media sites in the employment decision process is used consistently.
Employers should also familiarize themselves with the “off-duty” laws in each state where their employees are located and refrain from considering protected activities in their hiring decisions. More than half of the states prohibit employers from taking an adverse employment action based on an employee's lawful conduct on their own time (that is, off the job), even if the person is only a prospective employee. In Minnesota, for example, it is unlawful for an employer to prohibit a prospective employee from using lawful consumable products, such as alcohol and tobacco, during nonworking hours. Further, New York protects all lawful recreational activities, including political activities, during nonworking hours. While employers can continue to use social media and other tools for recruiting purposes, they should be mindful of existing and developing laws affecting the hiring process.
If you have any questions about this area or need any help in developing applicable social media policies, please give Anne-Linton Pond Hendrickson (just ask for “Anne”), Paul Himmelstein or Bob Beachy a call.
