Depending on the report you read, estimates range from 80 to 98 percent of recruiters that cite using some form of social media to consistently stock their candidate pools. A high number of those recruiters will also do full pre-hire internet searches on candidates to make sure there isn’t any cyber dirt floating around; and why not? The problem is that information gained from these searches can possibly be used to sway a hiring decision, whether intentionally or unintentionally, and if it relates to protected class criteria, an employer could find themselves in hot water. Social sites may include information pertaining to the candidate that you should not try and find out including age, race, ethnicity, religion, sexual orientation, age, disabilities, marital status, political affiliations, or other personal information.
In a recent article posted by the Society for Human Resource Management (SHRM), David S. Baffa, a partner with Seyfarth Shaw in Chicago states, “The benefits of using social media in recruiting are clear. [Although it’s true there is a potential for costly lawsuits against employers who misuse social media] most of the stuff you hear about potential risks, I haven’t seen it play out in litigation.”
Teresa Thompson, an employment lawyer at Fredrikson & Byron in Minneapolis disagrees. According to Minnesota Public Radio, she cautions employers against using social media sites at all during the hiring process. “[Looking solely at a candidate’s skills and experience and ability to do the job;] Legally, that is the safe way to play it. Probing deeper into someone’s online existence can cause trouble.”
“You’re going to get information maybe you shouldn’t get when making hiring decisions,” Thompson said. The information might include learning that an applicant is pregnant. A couple of years ago, Thompson cautioned a group of employers about the perils of using Google to find information on a candidate. At the time, she was pregnant. “I stood out from behind the podium and turned sideways, baring my stomach to the world, which was frightening, and I said, ‘If you had to choose between me at nine months pregnant and an equally qualified person, who would you choose?'” Thompson recalled. “And everyone in the room hung their head and looked down.”It might be difficult for a pregnant job candidate who is not hired to prove discrimination. But if someone sued, Thompson said, an employer would have to admit to using Google to learn more about the candidate they spurned. “And then,” Thompson said, “the question would come out: ‘Then is that the reason?'”
If you choose to use social media in your hiring process, even if litigation has not yet caught up to the widespread use of social media in business, it does not mean that employers shouldn’t be cautious of processes and procedures.
General tips for using social media searching during the hiring process:
- Don’t run any searches until a face-to-face interview has been conducted to reduce the potential for discrimination claims.
- Have someone outside of the hiring process perform the search and submit on information relevant to the hiring process to those making the decision.
- Never use any protected information gained during the search when making the hiring decision.
- Create a policy with strict guidelines as to how the searches will be conducted and the information used in the hiring process.
SHRM advises that “employers should keep in mind that background-screening companies that use social media sites are subject to the provisions of the Fair Credit Reporting Act, under which applicants must give permission for pre-employment investigations. Another risk to employers is that they could be sued for negligent hiring for not using information available on the Internet that might have foreshadowed bad behavior by an employee. However, legal experts say they are aware of no significant cases of this type against employers to date.”
With advertising and using social media to source candidates in particular, the problem arises in the fact that certain classes of minorities are not widely represented. For example, compared to the general population, there are significantly lower percentages of African-American and Latino users on social media sites. “That puts the burden on employers to widen their job searches through other means, such as job boards, newspapers, magazines and job fairs.” Posting on your organization’s careers page or at the bottom of job ads that you are an “Equal Opportunity Employer” is not enough.