With the proliferation of social media use, prospective employers are often tempted to fish around the Web to see what they can find about applicants for employment. Should employers routinely check applicants' Facebook pages or Google them as part of the hiring process?
In recent articles and seminars, some employment lawyers have cautioned employers against any use of social media as a screening tool in hiring based on concerns that the company will acquire information that it otherwise would not seek during the hiring process. For example, a Facebook profile can reveal an applicant's age, race or gender at a stage when the employer may not otherwise have knowledge of these criteria. Also, social media and Internet searches can reveal medical information about applicants that could lead to claims of discrimination under the ADA.
These concerns should not completely deter employers from checking these resources. Many employers find material facts through these searches that legitimately affect their decisions as to whether or not to hire an individual. The key for employers in terms of legal compliance is to have a policy in place that guides recruiters' use of these Internet resources.
Employers should not allow unrestricted Internet searches of applicants. No matter how tempting, supervisors or other unauthorized persons should be instructed not to review these sites as part of the hiring process. Searches should be limited to applicants who have advanced to a late stage in the hiring process, perhaps those to whom a conditional offer of employment has been extended. This can help avoid claims that the employer is using impermissible criteria to screen applicants at an early stage in the hiring process.
The policy should clearly state what information will be sought and considered as part of the hiring process. These should roughly be the same things the employer reviews as elements in the hiring decision: background, qualifications, work history, etc. Employers may choose to disclose to applicants that Internet searches will be part of the hiring process. Finally, whatever searches are deemed appropriate, this process should be standardized, with all similarly situated applicants subjected to the same review, and the same criteria used to disqualify someone from employment.
Employers that are federal contractors may want to take additional steps before undertaking these types of searches. Under Executive Order 11246, Internet searches are subject to DOL's recordkeeping rules. The searches and their results must be documented and preserved for at least one year in case of an OFCCP audit. For all employers, records of information used to exclude any applicant should be maintained in the event of claims of discrimination.
Social media reviews can be a valuable way to determine if an applicant is providing the full and true story when applying for a job. If employers plan and limit their searches as described above, this tool can be used while limiting potential legal exposure from unrestricted searches.