
So should company recruiters adopt the football recruiters’
approach and routinely review various social media postings before making
hires? Like many things in the human
resource/employment law realm, there really isn’t a clear cut answer.
On one-hand, there’s risk in not doing your due diligence
before hiring a candidate. What if a
quick search would have revealed that the potential hire was posting
confidential information about his or her current employer or about a
customer? Or, what if the individual was
posting racists comments? You might
think twice about making that hire. On
the other hand, what if you stumble across some protected class
information? For example, what if you
see a post about a recent medical diagnosis or that the individual is
pregnant? If you decide not to hire the
individual (for other lawful reasons, of course) and that individual challenges
the decision, you’ve lost your ability to claim that you had no knowledge of
the protected class status.
I encourage clients to be thoughtful and deliberate about
their approach to using social media and other technology related sources to
screen out candidates. If you’re going
to use social media, you should adopt a standard approach, whether that is for
all positions or a limited subset, and apply it consistently. By doing so, your company will limit a candidate’s
ability to argue that you chose to engage in social media sleuthing for discriminatory
reasons. You should also consider
limiting who conducts and has access to the information gathered through the
social media sleuthing. Consider, at
least initially, excluding the decision-makers from that process. In essence, social media sleuthing is really
just another form of background checks. Assuming your company is handling those the correct way, consider
adopting very similar procedures for social media sleuthing. One additional word of caution, though - accessing
information that isn’t readily available to the public and by some means that
is less than transparent (i.e. looking over the shoulder of an employee who is
“friends” with the applicant to access information) is generally not
advisable.
What approach does your company take as it balances the pros
and cons to accessing this information? I’d love to hear thoughts and ideas, so please comment below.
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