With more and more people (especially Gen Yers and Millenials) posting their personal information on the internet, it seems a handy place for employers to go to scoop up background information on prospective hires. After all, by publishing this information on their blogs, Facebook pages and MySpace profiles, the potential employees can hardly claim that this information is private. I mean, if you’re too dumb to know that unless specifically encrypted, your blog is totally open to computer-connected Planet Earth, you’re too dumb to be hired, right? So whatever an employer finds is fair game, yes?
Not exactly. As with other hiring and screening processes, unless an employer utilizes them fairly–and handles the information received objectively across the board–an employer could be held liable for discriminatory hiring practices.
Let’s say that Jarhead Corp. is screening two applicants: One is a white male, who has posted a photo with fraternity buddies, holding beers; the other is a Chinese female, whose photo shows her with close friends at an LGBT (lesbian, gay, bisexual, transgender) rally, revealing pierced navel and tattoos. Can an employer honestly say that the LGBT context and race won’t come into play? Similarly, can an employer document that the same degree and level of searching on the internet is done about all candidates? Or is it only to dig up dirt about female ones to find a reason not to hire them?
If an employer does not have a set policy (or list of steps) for the ways it goes about evaluating its employee candidates, it can leave itself open to a world of hurt. That is particularly true because the nexus between social media and law is so new, and there’s not a lot of case law yet to give employers guidance as to how these kinds of issues will be received by courts and legislators. Best to consult an employment attorney when developing a hiring strategy to make sure that the tactics you use don’t run afoul of the law.
Great insight and even better advice. The use of such information is certainly an emerging trend among employers and many are beginning to ask about whether the information found can be used when making a hiring decision. Many just assume that it is legal and are taking a significant risk. I would have to believe that even if there was a policy in place for checking such information, the argument could always be raised that subjective or impressible criteria was used when the adverse decision was made.
I concur that issues centered around potential discrimination and the use of such information within the screening process is a primary concern. Secondly, most of these sites provide a privacy statement and specific parameters for use of information contained within for the private use of their members. If a lawsuit is brought about by the candidate, the employer could possibly have a tougher time defending the use of such information within permissible use and in accordance with the creators of the site. Thirdly, is this information accurate and how do you confirm information without other identifiers to weed out common names?
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