More and more employers are using the Internet to gather information about job applicants. Often, employers who are curious about an applicant's social activity engage in a publicly accessible search of an applicant's social media presence. These employers should keep in mind that even a public search has its pitfalls; namely, once an employer has seen something posted by or about a candidate on the internet, it cannot be "un-seen," and the knowledge obtained during such a search (for example, the applicant just celebrated his 50th birthday, the applicant's mother has *** cancer and it runs in the family, the applicant has 4 children and one child is disabled, etc.) may be used against the employer should the employer fail to hire an applicant whose public social media presence reveals protected characteristics or activities.
Here are 5 tips for employers to consider before using social media as part of its vetting process, in order to help employers avoid the risks that may accompany its use:
- Designate a "search person" who is not the decision-maker. Employers who wish to perform social searches during pre-hire recruitment should consider designating a person who is not the decision-maker (or even involved in the decision-making process) to conduct these Internet searches for a candidate's social media activity.
- Search consistently. Employers who use social media as part of their vetting process should ensure that their search person(s) is/are consistent in their searches. For example, employers should have their search person(s) conduct searches of candidates at the same point in the hiring process every time, and use the same search sites every time for every candidate. (ie. Don't search Catholiclawstudents.com for one candidate, and Hispaniclawstudents.com for another).
- Do not convey protected activities/characteristics to decision-makers. It is a good idea for employers to have a process where the designated search person(s) will not convey protected activities or characteristics that they discover by virtue of their search, to the decision-makers. This is important because, if an applicant feels that they did not receive an offer of employment because of something that the employer may have seen on a social media site, the employer wants to be able to say that the decision-makers were not aware of any protected characteristics or activities, and did not base their hiring decision on any protected characteristics or activities.
- Identify a legitimate, nondiscriminatory reason for any employment decision. Examples of an applicant's poor judgment might be discovered during a social media search. For instance, an employer might learn that the applicant has posted a nude photo of him/herself as their profile picture on Facebook. While the employer may no longer wish to consider this candidate for employment with their company, it would not be a best practice to tell the candidate that this is the reason they were denied the employment opportunity. As with every employment decision that is made around hiring, an employer should be able to articulate a legitimate basis (i.e. not as qualified as other candidates) for not hiring that candidate. That is not to say that the reason for not hiring someone needs to be conveyed to that person at the time, but still, an employer should be able to identify and document the non-discriminatory basis for its decision not to hire a candidate.
- Have a social media screening policy in place. Employers who regularly use social media as a vetting tool during their recruitment process may wish to implement a Social Media Screening policy reflecting the company's position with respect to its use of social media, and particularly its prohibition against using it as a tool to discriminate against applicants. Such a policy could be distributed only to those employees charged with recruitment and social media search duties, and would reflect that while the employer may access social media websites in searching for potential candidates, it will not use any information obtained on those sites to discriminate against any potential candidates based on protected characteristics or protected activities. It may further forbid the company's recruiters from conveying any such information to the decision-makers.
How do you use social media in your recruitment practices? Share in the comments, and remember these tips as you research your job candidates.
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