Can companies use social media to screen job applicants?

Social networking sites such as Facebook and Twitter, and Internet search engines such as Google, can provide a lot of information about someone you don’t know well. For that reason, many employers are using them to screen job applicants, hoping to learn more about a person than what they can see on a resume.

But this can pose legal problems – because these sites can easily give an employer information that is supposed to be off-limits when making hiring decisions.

For example, an employer might discover:

  • A Facebook post where an applicant discusses his religion.
  • A picture of an applicant wearing a “gay pride” t-shirt.
  • An applicant’s announcement that she’s pregnant.

If a business denies someone a job based on such information, it could be sued for discrimination.

Even if a business denies someone a job for other reasons, the fact that it knew about these things could make it hard to prove that it acted for those other reasons and not for illegal reasons.

Take the case of an astronomy professor who applied for a job at the University of Kentucky. The school found articles he wrote online suggesting that he might believe in creationism.

After the university denied him a position, he sued, claiming the school failed to hire him because of religious discrimination. The university settled the case.

Of course, if you’re a job applicant, it’s always a good idea to “Google” yourself and review your Facebook page to see if there’s information about you online that you wouldn’t want an employer to see.

If you’re an employer, there are ways to use social media to research a job candidate. But you need to be careful. In general, it’s much better to use social media late in the hiring process as a kind of background check – to make sure a top candidate isn’t hiding anything damaging – than to idly look up a wide range of applicants early on.

Here are some specific suggestions to help you comply with the law:

  • Don’t do Internet research until after an in-person interview. You don’t want it to appear that you decided whether or not to interview a person because you found out in advance about the person’s age, race, or ethnicity.
  • If possible, have the online research performed by someone else – ideally a human-resources professional – rather than the person making the hiring decision. Human resources people are more likely to understand what specific information a company can and can’t legally consider. Also, they can filter things out, so the person making the hiring decision doesn’t see any legally impermissible information.
  • Come up with a list of specific things for the person conducting the search to look for (and run the list by an attorney). Ideally, the list should be tailored to the requirements of the particular job. But it could also include items such as whether the applicant has discussed confidential information about other employers online, posted about illegal drug use, made threats or committed violence against others, or used racist or sexist language.
  • It’s a good idea to tell job seekers that you will be conducting an Internet search about them – or at least warn them that you reserve the right to do so. You might even consider having applicants sign a document agreeing to an Internet search.
  • Never “friend” an applicant under false pretenses to gain access to private information, and never try to gain access to private information through a current employee who recommended a candidate. These actions could be a federal crime under the Stored Communications Act.
  • Never ask an applicant to show you his or her Facebook account during an in-person interview. Some employers make a practice of this, but it’s legally very risky.
  • Finally, if you have a strong candidate but you decide not to hire him or her based on something you saw on an Internet or social media site, you should consider telling the applicant what you found and giving them an opportunity to respond. The applicant could have a perfectly innocent explanation. In some cases, for instance, it’s turned out that the offending information was posted by a completely different person with the same name.
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