Posted by: Professionals In Human Resources Association (PIHRA) | October 27, 2010

Slow Down Rush to Source Candidates on Internet and Social Networking Sites

By Lester Rosen, President of Employment Screening Resources (ESR)

No discussion about recruiting job candidates these days is complete without an analysis of how the Internet is used for hiring.  From social networking sites such as Facebook and Twitter to blogs, videos, and business connection sites like LinkedIn, employers focus with laser-like intensity on how to use the Internet to source and screen candidates.

What is sometimes overlooked in the rush to use the Internet to recruit is the one question employers need to ask: What are the legal risks in using the Internet for hiring?

Discrimination Allegations
Allegations of discrimination are one critical area where employers can find themselves in hot water when utilizing social networking sites. Employers may be accused of disregarding candidates who are members of protected classes by passing over the online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religious affiliation, marital status, or medical condition. There may even be photos showing a physical condition protected by the Americans with Disabilities Act (ADA) or showing candidates wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as Too Much Information (TMI). Once employers are aware that an individual is a member of a protected group, it is difficult to claim that they can “un-ring the bell” and forget they saw such information.

Authenticity Issues
Another issue facing employers using the Internet to source is authenticity. In other words, if negative information about a candidate is found on the Internet or a social networking site, how is the employer supposed to verify that the information is accurate, up-to-date, authentic, and if it even belongs to or applies to the candidate in question?

Privacy Issues
Another problem concerning Internet sourcing and screening yet to be fully explored by the courts is the issue of privacy. Contrary to popular opinion, everything online is not necessarily fair game. Certainly, people choosing not to adjust their privacy settings so that their social network sites are easily available on Internet searches may have a more difficult time arguing that there is a reasonable expectation of privacy. However, the terms of use for many social network sites prohibit commercial use and many users literally believe that their social network site is exactly that – a place to freely socialize. The argument would be that in their circles it is the community norm, and a generally accepted attitude, that their pages are off limits to unwelcome intruders, even if the door is left wide open. After all, burglars can hardly defend themselves on the basis that the front door to the house they stole from was unlocked so they felt they could just walk in. There is also the issue of legal off-duty conduct, since a number of states protect workers engaged in legal off-duty conduct.

Protection against Allegations of Discrimination & Issues with Authenticity and Privacy
The issue for employers is how to protect themselves against allegations of discrimination and issues with authenticity and privacy if no further action is taken after the discovery on the Internet that a person is a member of a protected class or when finding negative information.  For employers wanting to use social network sites to screen a candidate, the safest path when using the Internet is to obtain consent from the candidate first and only search once there has been a conditional job offer to that candidate. This procedure helps ensure that impermissible information is not considered before the employer evaluates a candidate using permissible tools such as interviews, job-related employment tests, references from supervisors, and a background check.

At that point, after using permissible screening tools, the reason for employers to search social networking sites would be to ensure that there is nothing that would eliminate the person for employment, such as saying nasty things about the employer’s firm, or if the applicant engaged in behavior that would damage the company, hurt business interests, or be inconsistent with business needs.

In addition, employers in the sourcing stage may want to consider having a clear internal policy and documented training that Internet sourcing is not being used in violation of federal and state discrimination laws and that only factors that are valid predictors of job performance will be considered, taking into account the job description, and the knowledge, skills, and abilities required for the position. It also helps to have objective and documented methods and metrics on how to source and screen on the Internet.

Bottom line: Employers must approach Internet sourcing and social network screening with caution before assuming everything is fair game in the pursuit of candidates.

Attorney Lester Rosen is President of Employment Screening Resources (ESR) and author of “The Safe Hiring Manual.”  ESR is accredited by the National Association of Professional Background Screeners (NAPBS).


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