INSIGHTS
LEGAL AFFAIRS
Asking for trouble?
The legal risks that come with
using social media as a hiring tool
INTERVIEWED BY MARK SCOTT
W
hen you turn to Facebook and
Twitter to learn more about an
individual you are considering for
a job, you open yourself up to substantial
legal risk, says Kailee Goold, an associate at
Kegler, Brown, Hill + Ritter.
“Social media forums — Facebook,
Twitter, LinkedIn and others — can reveal
what is referred to in the legal world as an
applicant’s protected status,” Goold says.
“Gender, pregnancy, race, disability and
even religion are bits of information you
can collect about a person by way of a social
media search.”
If you decide not to hire the applicant,
and there is reason to believe you were
negatively influenced by a protected status
revealed in your social media research,
your company could be looking at a
discrimination lawsuit.
“People just don’t understand the liabilities
and risks they are taking when they do this
without a sound process in place,” Goold
says.
Smart Business spoke with Goold about
how to legally protect your business when
using social media to make personnel
decisions.
Is it legal to use social media to check out
job candidates?
There is nothing outright illegal about
viewing publicly available information as
part of an informed hiring process and then
making a hiring decision based on legitimate
factors (e.g., not race or gender). But there
are ways snooping on social media can easily
go awry. For starters, it’s very dangerous
to look through these sites and make
assumptions if you are not familiar with
them or don’t understand how they work.
So you should get educated on the various
platforms and their purpose or get someone
KAILEE GOOLD
Associate
Kegler Brown Hill + Ritter
(614) 462-5479
[email protected]
WEBSITE: Want to know more about Kailee? Check out
her full profile at www.keglerbrown.com/goold or follow her on
Twitter @kaileegoold.
Insights Legal Affairs is brought to you by Kegler Brown Hill + Ritter
in your company who has that knowledge to
do your social media research.
In fact, the solution that affords you the
most protection against a lawsuit is to
appoint a neutral nondecision-maker to
handle this task.
How does using a nondecision-maker
protect you legally?
It gives you a good defense. Let’s say you
(as the hiring decision-maker) Google
someone’s Facebook page and you see
that the person is blind (or part of another
protected class). You may be biased, even
implicitly, against that person as a result of
viewing this information. Even if you are not
biased against the applicant, the applicant
could still make the argument if you hire
someone not similarly disabled.
So set up a barrier to avoid this issue
altogether. To start, identify the legal
disqualifiers that are valid reasons to not hire
someone for the specific job. If violative of
company policy, things like illegal drug use
and use of hate speech may qualify and give
you a nondiscriminatory reason to deny
employment. Once you have identified these
legal disqualifiers, hand them off to someone
who is not involved in the hiring decision.
If the candidate is ultimately denied the job
and says it was because you found something
about his or her disability on their Facebook
page, you can honestly say that it wasn’t a
factor in your decision.
What else do employers need to know?
First, you can’t ask for passwords to
someone’s social media accounts. You can’t
interview the applicant and say, ‘Give me
your password to Facebook,’ nor can you
have the person sit at a computer in front
of you and watch over his or her shoulder
as they enter it. Similarly, you can’t create a
false identity and try to friend the person on
Facebook or connect on LinkedIn to gain
access to information that is not publicly
available.
Second, if you do find something in your
research that you think is a valid disqualifier,
print it out because this information can
disappear in an instant. You want to have
some evidence or documentation in the
event the applicant brings a discrimination
claim. You want proof that they were denied
the job for a legitimate nondiscriminatory
reason.
Third, and maybe most important, you
should ask yourself if social media research
is really necessary when it comes to hiring.
Is what you’re going to find on Facebook or
Twitter relevant to the job? If you’re looking
for someone to manage your social media
presence, maybe that makes a lot of sense.
Otherwise, what are you looking for that
you couldn’t get in an interview? Sometimes,
you’re just asking for trouble. ●
© 2015 Smart Business Network Inc. Reprinted from the May 2015 issue of Smart Business Columbus.