Wouldn’t we like to know if a potential applicant has ever criticized a former employer, or whether their online presence gives evidence of illegal activity or violent, discriminatory or unethical behavior? Or just poor judgment? What if they belong to political groups, like the Tea Party or the ACLU?

What is so wrong with learning information like that? The answer is it can expose the employer to liability.

The use of social media in hiring decisions remains a hotbed of potential legal risk for employers. Yet, an increasing number of employers are using social media sites such as Facebook, LinkedIn, Twitter, YouTube and even Craigslist to screen potential candidates to avoid hiring the “wrong” candidate.

What Can An Employer Look At?  California enacted AB 1844 last year, which affords job applicants greater social media protections by prohibiting employers from seeking log-in information from applicants, asking applicants to “friend” other employees, or asking an applicant’s “friends” to disclose what the applicant has posted on social media.  However, employers are not explicitly restricted from accessing publicly available information about candidates.

  • Bandwagon effect:  Since California passed AB 1844, many other states have followed with similar legislation. On the federal front, the National Labor Relations Board (NLRB) has kept a watchful eye on employers using social media information in employment decisions.  It is worried that concerted activity protected under federal labor laws may be restricted.  On February 4, 2013, the federal government reintroduced the “Social Networking Online Protection Act” (SNOPA) which would prevent employers from seeking access to social media and other online information from job seekers and current employees.

­Discrimination Traps.  Social media can reveal personal information about a candidate that would be illegal to request during the hiring process (e.g., physical disability, age, marital status, religious affiliation, political affiliations, etc.).  Employers should be mindful that this may open the door for potential discrimination claims.

  • Example:  An applicant, a mother who tweets that her son is undergoing cancer treatments, is not hired.  She could bring a claim for association discrimination under the Americans with Disabilities Act (ADA), the California Fair Employment & Housing Act (FEHA), or even the Genetic Information Nondiscrimination Act (GINA).
  • Example: A decision not to hire an individual because he or she has sued a previous employer could violate laws prohibiting retaliation under antidiscrimination, wage and hour, or whistleblower statutes.
  • Example: The CA Department of Industrial Relations has interpreted Section 96(k), which prohibits employers from taking adverse action due to an employee’s lawful conduct outside of work, to apply to decisions not to hire employees, even though the statute does not explicitly reference hiring. 

Workplace Solutions:  The best practice is to avoid using social media in hiring decisions since there are serious legal risks involved.  If an employer would still “Like” to do this, the following steps can help you mitigate those risks:

  • Document the hiring process.  Include a checklist of the relevant hiring credentials that sets forth the scope of any lawful use of social media information (e.g., if a candidate’s social media background is relevant to the position being filled).
  • Wait Until You Extend the Offer.  If you make an offer and then later discover that a new hire has made a material misrepresentation about prior employment, etc., you can then record the offense.
  • Designate a Screener.  Have a non-decision-maker do the search and only have them report on permissible job-related information.  Filter out the rest.
  • Educate Your Employees.  Instruct HR and management employees to not conduct independent searches on prospective candidates.  Train and educate personnel on how information from or even accessing an individual’s profile on social media and the Internet may give rise to allegations of employment discrimination.
  • Be consistent:  If you are going to use social media in hiring, use it for all applicants, not just some. 
  • Be skeptical.  Remember, not everything on the Internet is true!