Posted on Jun 03, 2015 by Reginald W. Belcher
Hiring managers increasingly are checking out job applicants on social media, and it’s easy to see why: The Internet holds a trove of personal information on most of us, and it doesn’t take much time or skill to mine this data.
But, you do so at your peril, I always tell employers.
A lot of what you come across in Internet searches about a job applicant will make my job as an employment litigator harder if I’m defending you in a discrimination lawsuit. The problem is that there are certain things that you should never ask in a job interview, and yet you can’t help but stumble across these areas in a search of social media.
Remember, every click of your keyboard is subject to discovery in litigation. Once you’ve seen something, you can’t turn back the page.
This information-intake includes a person’s disabilities, ethnicity, age and religious beliefs. Even learning about prior arrests can be problematic, since the EEOC has strict rules about giving an applicant the opportunity to explain an arrest before using it as a reason to reject them for a job.
Still, I know that most employers are going to at least Google a job applicant, and many will dive into Facebook and Twitter pages. From a risk management standpoint, here are my concerns.
I don’t have too many concerns about LinkedIn, a site that is geared toward displaying professional information and, for the most part, works as an expanded online resume. Most LinkedIn profiles show the person’s picture, which, of course, will reveal race and suggest age, and some people list interests or organizations that will suggest religious affiliation.
Messaging in 140 characters or less seems to bring out the worst in people. I can’t imagine anyone posting something on Twitter that will make them a more viable job candidate. Just don’t go there.
It’s hard to resist the temptation to look at an applicant’s Facebook profile. People tend to open up their lives on Facebook, revealing who they voted for, religious beliefs and how they feel about various social issues. You often can get a good sense of their lifestyle and character, too, and in certain jobs that’s a legitimate line of inquiry. A religious college, for example, might have a prohibition against employees drinking alcohol, and that’s okay.
What’s not okay is using subterfuge to gain access to Facebook pages. Some people leave their Facebook pages open, and there’s certainly no privacy issue there. But, if you gain access by misrepresenting yourself in a friend request, you’ve left yourself open to privacy concerns. Don’t do it.
One advantage of Google is that it generally gives you a capsule of information. If the index information suggests that it leads to something you shouldn’t explore, you can just not click on it.
Some employers ask job applicants for a waiver that allows them to explore their social media. That protects you from privacy violation claims, but it does nothing to protect you from claims of discrimination. An applicant may have given you the key to their vault, but if the vault has information you’re not supposed to know, that’s a problem.
In some states, it’s illegal for employers to require job applicants to turn over passwords, although that issue has not been addressed by the South Carolina Legislature.
As all of us know, the Internet is filled with lies and half-truths. If you find something that seems to support rejection of an applicant, give them the opportunity to respond. While you’re justified in rejecting someone with a recent DUI who has applied to drive a school bus, the information you found may be flat out wrong.
Although it’s not a guarantee of protection from litigation, one thing you can do to reduce your risk is to have an outside agency perform Internet searches on employees. Tell them to ignore prohibited areas such as race, age, religion and arrests, and then to present you with a report on the areas that you can safely explore.
Using the Internet for employee searches can be a useful tool, but there’s still no substitute for a skillful interview of an applicant and screening of references. Don’t be tempted to take a shortcut through social media.
Reginald W. Belcher is a shareholder at Turner Padget in Columbia, S.C., and represents businesses and employers throughout South Carolina. The South Carolina Supreme Court has certified him as a specialist in Employment and Labor Law, and he writes employee handbooks, affirmative action plans, employment contracts, severance agreements, and non-compete and restrictive covenants. He trains supervisors and managers on compliance issues involving wage and hour laws, workplace harassment and union avoidance. He may be reached at (803) 227-4314 or by email at firstname.lastname@example.org.