By Maria Clark
The Daily Record Newswire
Employers know well to steer clear from asking a potential hire about their age, religion, or political views — questions that could open the employer to accusations of discrimination if the person isn’t hired.
But social network profiles now make all of that off-limits information available.
A survey the jobseeker website CareerBuilder commissioned last year found that hiring managers from two out of five companies use social networking sites to screen applicants, with more than 65 percent turning to Facebook as their primary source.
Close to two-thirds used social networking sites to see if candidates conducted themselves professionally, with about 51 percent using it to see if the candidate is a good fit for the company.
“I think there is a fundamental disconnect between applicants and companies,” said Timothy Scott, an attorney with Fisher and Phillips. “Companies feel they have the right to conduct a thorough background check, which includes looking into someone’s social media account. Meanwhile, most candidates see this as an invasion of privacy.”
Although social media can provide a more comprehensive picture on a person, Scott said there is a danger for companies that use the resource.
“The employer also has some access to protected information that could open them to accusations that they discriminated against a candidate if they aren’t hired,” he said.
Social media profiles often publically display information that identifies someone as being part of a protected class. This means that under federal law, people cannot be discriminated against in the workplace or denied a job based on their gender, religion, political leanings, age or race — information that’s often prominently displayed on someone’s social media profile.
Scott advises that employers notify potential hires that they will be screening their social networking sites as part of their hiring process and to note the business reasons for doing so.
Employers should set up a policy that sets up a parameter on what type of information they will be looking for in a social media account and make sure that it is relevant to the position they are looking to fill, said Erin Kilgore, an attorney with Kean Miller.
“Preferably the decision maker will not be in charge of conducting the search,” Kilgore said.
Over the past two years, 12 states have enacted laws that prohibit an employer from requiring applicants to give their passwords to their personal social media account during the hiring process. Similar legislation has been introduced in 20 other states.
Employers also need to be aware of risks they face conducting criminal background checks.
Over the past year, the Equal Employment Opportunity Commission has made key changes to its guidelines for employers conducting such reviews. Employers are expected to look at the nature and seriousness of the offense, as well as the time that has passed since the offense and whether the crime has any relation to the nature of that job.
Joseph Lavigne, an attorney in the labor and employment practice area with Jones Walker, said the EEOC is now paying close attention to complaints connected to criminal background checks.
“This is going to require employers to begin making individualized assessments on potential candidates,” Lavigne said. “The EEOC has noted that this has had a big impact on the employment rate among minorities in particular.”
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