The SCORE 2014 Issue 4 2014 | Page 25

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)