Insights Into How Our Legal System Works

Could Researching Potential Employees on Social Media Open You up to a Lawsuit?

10 November 2016 by Yolanda Lane

Running a background check on your prospective employees is just good business sense—but you have to be smart about how you do it in order to avoid running afoul of the Equal Employment Opportunity Commission's rules against discrimination. This is where the current trend of Googling your applicants' names and poring through their Facebook pages can backfire and leave your company vulnerable to a lawsuit. Here's how you can still find out the information that you want and need without putting your company at risk of a discrimination claim.

Why Is Searching for Information Online About a Job Candidate Bad If Everyone's Doing It?

About 77% of employers search Google when researching job applicants. In fact, there are some professionals in the job-hunting field that think that having an empty Google result is actually detrimental to someone's chances of getting hired because employers at least want to see that applicants really are who they say that they are. 

Even though the majority of employers are using the internet to research candidates they are running a risk of their own if they go too deep into that search and stumble across information that they'd rather not know—something non-obvious that puts them in a protected class under the EEOC's rules. 

For example, if you meet an applicant for an interview and then check for his or her Facebook page, you might learn that he or she is actually a practicing Muslim—something that (rightfully) did not come up in the interview. While you may not actually consider that fact when making your hiring decision, the rejected candidate could get wind of the fact that you learned about his or her religion while researching online and allege that was the reason he or she didn't get hired. In addition, some state laws prohibit discrimination based on lawful off-duty activity. Imagine that you discover your conservative-looking applicant has some decidedly liberal political beliefs. If you decide not to hire him or her because you're afraid that he or she won't mesh with your company's corporate culture, you'd be in violation of the law.

How Can You Vett Potential Employees Through Social Media Without Breaking The Law?

Fortunately, there are a couple of ways around the legal entanglements that come with using online searches to research employees:

• Assign a member of your staff that won't be involved in the hiring process to do the online search and only provide feedback based on information that's relevant to the job. For example, the selected employee might report that there's a discrepancy between the applicant's LinkedIn profile and his or her resume that needs to be questioned.
• Hire a background check company to do the investigation for you. Make it clear that you don't want to know any information that could potentially open you up to an EEOC lawsuit.
• Never ask a potential applicant to change his or her privacy settings or allow you to look at his or her private pages. Assume that you don't need to see what's on it and that doing so could put you at risk of a discrimination suit.

Perhaps most importantly, make sure that you document what caused you to decide against a particular candidate so that you can articulate your reasoning if you are later accused of discrimination based on an online search that revealed protected information. Having a clear ability to state exactly why you either didn't extend a job offer or rescinded one can save you a great deal of trouble down the line.

Share

Search