Why Googling Candidates Before You Decide to Interview Them is Against the Law

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According to the Society for Human Resource Management (SHRM)-Ascendo Resources survey published this past September, 65 percent of organizations actively searched and made new hires using social media in the past year. More than half, 57 percent, found people through LinkedIn. Thirty percent hired people found on professional or social networking sites (SNSs), and 19 percent made hires from Facebook.

Organizations must tread lightly when using social media to screen potential candidates. Legislation on pre-screening employees is in its infancy, when it comes to social media. Viewing a candidate's social media profiles, especially before you meet the candidate in person, could subject your organization up to a discrimination lawsuit. Below is a guide to help navigate the choppy waters of social media screening.

Laying Down the Law

What is the current state of legislation on pre-screening employees? Well, it isn't unlawful to find and vet candidates using social media. But how and when you obtain information, as well as how you use, it can pose problems. Why? Bias can slip into decision-making when trying to make decisions on screening, interviewing and then hiring.

There are avenues of guidance that give employers a road map of what they can and cannot capture. Outside of the courts, guidance results from the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) cases due to allegations of social media abuse.

Employers get into trouble when they access social media too early in the process. Social media accounts have profile pictures that can reveal what the EEOC deems as "protected characteristics," such as gender and race. The online profiles and posts may reveal even more protected characteristics such as gender identity, sexual orientation, religion or disability. Sometimes, you can even learn of home life issues that affect a person's ability to be on-time. If you obtain this type of information prior to a face-to-face interview, ensure you design your interview questions and keep your decision-making strictly within legal interview limits.

Taking it to Court

Today, the courts are paying attention to the use of social media in pre-screening employees. The Neiman v. Grange Mutual Insurance Co. case is a current example of a violation of the Age Discrimination in Employment Act (ADEA). In that case, a U.S. district court denied GMIC's motion to dismiss the plaintiff's age discrimination claim. The employer argued that the plaintiff's age was unknown because the interview was conducted over the phone. The plaintiff alleged the defendant knew his age because on his LinkedIn profile he clearly stated he graduated from college in 1989. The court found the allegation sufficient to place GMIC on notice that Neiman belonged to a protected class because a reasonable person would assume someone who graduated college in 1989 was over the age of 40.

Passwords and Privacy

As LinkedIn, Facebook, Twitter and other networks have become more popular, some employers have tried to use these mediums to gain personal information on both candidates and employees. This would be information to which they would not ordinarily have access. Employers have gone so far as to ask, and sometimes require, passwords to gain full access to personal sites.

As of July of this year, 22 states, in response to the potential privacy issues and risks, passed laws banning such practices. As a result, employers may no longer request or require passwords and must, instead, obtain personal information at the appropriate intervals in the employment process.

To stay ahead of the law, it is critical for employers, especially those who do business in multiple jurisdictions, to stay up-to-date on all the developments in this area because intricacies in the law change federally and by state.

What's Happening Overseas?

In contrast, in other parts of the world, according to a recent U.S. social recruiting study done by Jobvite,"European employers are lagging American organizations in terms of adopting social recruiting and hiring."

Stepstone, one of Europe's most successful online job boards, recently published their "Recruitment via Social Media: Fact or Hype?" study on recruiting and hiring practices in Europe. In the study, they quote another study by TNS that indicated the volume of candidates generated by SNSs is lower than other channels, and only 24 percent of organizations surveyed are happy with the candidate volume from SNSs.

The same study, however, reported that nearly three quarters of European recruiters use social media to get more information on prospective candidates. Employers have to be careful how they go about obtaining social media information and adhere to the laws of the country in which they are searching for candidates. In the UK, for example, employers must comply with the Data Protection Act of 1998. They may use social media to screen candidates, but any information they collect must be used for that purpose, only.

It's clear that social media's influence on recruiting will increase as its use continues to rise. While a valuable tool, it is imperative that your organization dedicates a watchdog with social media expertise and perhaps work with legal counsel to keep their finger on the pulse of changing regulations and guide your organization as these laws change over time.