or age. Lawyers (most certainly including
me) and human resource professionals
advise you to stay away from discovering
such information, particularly early in the
recruiting process, because it opens you up
to claims of unlawful discrimination. That
said, there are benefits to doing this type of
research: You might uncover illicit drug use
(particularly important for management
candidates), racist or sexist attitudes, poor
work ethic or other legitimately disqualifying characteristics. So how should you
proceed if you want to do this type of
research on candidates?
As an initial matter, I recommend
that you wait until you have narrowed
the field before looking at social media.
Doing so not only reduces the amount
of work needed to verify that an online
presence is in fact the applicant (as
opposed to someone with the same
name), but it also serves to lessen
the likelihood of a successful claim of
discrimination.
Consider using an employee not
involved in any way in the decisionmaking process to do the screening,
allowing the employee, pursuant to a
written policy, to report back only the
objective information relevant to the position being hired. (Alternatively, you can
use a third-party service to perform this
task, but make sure you comply with the
Fair Credit Reporting Act or similar state
law.)
For example, the screener could
be directed to report back whether the
applicant talks bad about others, engages
in aggressive or violent acts, unlawful
activity, discriminatory activity and sexually explicit activity, whether the applicant
reveals illegal drug use, racist/sexist biases,
comments negatively on an employer’s
product or service, reveals a history of
untruthfulness, or the like. The only caveat
here is that you should ensure the items
screened correlate with the candidate’s
fitness for the job.
And consider whether to limit the
research to professional or business sites
(e.g., LinkedIn®) rather than sites likely
to reveal“off-duty”information (e.g.,
Facebook).
Finally, document the social media
search performed and the results
obtained. This documentation will be
invaluable when defending a discrimination claim. For example, if a former
applicant claims he or she was not hired
due to a protected characteristic you
gleaned from social media, you can use
the documentation to show that either
the information was never obtained or, if
you have the right process in place, never
reviewed or made known to those who
made the hiring selections.
Using social media in the hiring
process can be a valuable screening tool;
however, like all tools, it must be used
appropriately in order to avoid unanticipated claims. Thus, if you decide to use
social media, make sure you consult with
an attorney or human resource professional so that you have the right procedures in place. S
Douglas H. Duerr is a partner at Elarbee
Thompson, a national labor and employment law firm with an industry practice area
focused on restaurants and franchises. Lea ɸ)