To Search or Not to Search: Protecting Your Recruiting Process from Social Media-Related Discrimination

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by Traci K and BrightMove Recruiting Software

Facebook and other forms of social media have become increasingly popular sources for those in charge of hiring to find free information about their applicants. You may assume that certain social sites would not have a wide reach or perhaps that only today’s youth are taking advantage of social media, making a case that it isn’t worth your time to search for candidate facts through these online venues. If that’s your opinion, think again. At a recent seminar through Belin McCormick Law Firm, this subject was presented, along with some staggering statistics about social media. The site Facebook, in particular, has 500 million active users, 100 million of them added between January and June of 2010. 41% of the 500 million users are in the United States and 28% are over the age of 34, listed as the website’s fastest growing demographic.

Keeping that in mind, what’s stopping you from running, not walking, to the nearest computer and searching every current and potential employee – with that much information at your fingertips, what could be the foreseeable downside? The fact of the matter is that there are many.

For the same reason we don’t ask for birthdates on applications anymore, the information that can easily be obtained on Facebook and other sites are things that, as an employer, we don’t want to try and find out due to necessary protection against discrimination claims. Belin McCormick cited potential legal issues and suggests using discretion when visiting certain sites to learn, whether with or without direct intent, about “numerous protected statuses that [you] then could be argued to have used to make an employment decision”.

Some of these are:
• Sexual Orientation
• Health Information
• Family Status
• Race
• Age

To be safe, if an employer wants to utilize social media in their recruiting processes, they should designate “an in-house ‘checker’ who does not play any other role in the hiring process”. This person would be responsible for searching specified sites before a candidate is hired. The checker, when they find information on a potential employee, should verify that what they have found pertains to the right person (i.e. not one of the many other Mike Brandt’s out there). As well, if access is not easily granted to view the desired data, false pretenses should not be used to gain it. An example of this would be creating a fake profile and befriending someone in order to see their webpage.

A list of search criteria should be made prior to searching, so that a conscious effort to stay away from protected status information can be made. Checkers should report back on only the things listed as “safe”. It is crucial to educate employees in this capacity to ensure they are knowledgeable of statuses considered protected. With the long list of concerns, the question could be posed, “Should you choose not to look at all?”

I suggest you do look, in order to safeguard your company, however, proceed with caution. Things the checker should report on are:
• An applicant claiming education on their resume that they do not have
• Positions an applicant was terminated from
• Crimes the applicant was convicted of
• Proof that the applicant is disrespectful, violent, or degrading to other persons

While Belin McCormick provides extremely useful guidelines on this topic, they warn that a few states, such as New York, have protections for employees’ lawful recreational or political off-duty conduct. Be sure to check the laws in your state before using ANY information, whether regarding a protected class or not, against a potential candidate.

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