What are pros and cons of using social networking to vet potential employees?
Some employers are conducting Internet searches on potential applicants, and they should be careful. First, it might not actually be that applicant. It might be someone else saying something about the applicant that may or may not be true.
It’s not per se illegal to consider information you find on the Internet about an applicant. You can legally decide not to hire a candidate after reviewing his or her Facebook or MySpace profile, for example. There is no prohibition against using information an applicant places in the public domain. However, all the same anti-discrimination laws apply. The employer needs to be careful of any search results where it finds any protected characteristic of the applicant. By discovering a candidate’s race or potential disability through a social networking site, the employer exposes itself to potential claims of failure to hire based on a protected characteristic under the anti-discrimination laws.
To avoid that, some employers have a nondecision-maker pool the information of potential candidates, do an Internet search and remove all this type of information before giving it to the actual decision-maker. They ‘scrub’ the information so the decision-maker cannot see it, therefore it cannot factor into the decision. That puts the employer in a better defensive position, because it did not consider any protected characteristics when deciding whether to hire the person.
Even then, keep in mind that the information found on social networking sites may not be accurate. Don’t wholeheartedly rely on something learned on a random Web site. There have been instances of people seeking revenge or retaliation for some slight by pretending to be that person on the Internet. There are also cases of college students creating unflattering user accounts pretending to be people they see as competition for a job. An employer should still use its normal vetting process for candidates.
How can you minimize the risk posed by employees with blogs?
The employer’s policy language should state that bloggers need to adhere to any confidentiality or trade secret policy. Employees can express opinions about their terms and conditions of employment, which is protected by the National Labor Relations Act. So if they want to write on a blog about how they don’t like the company’s new vacation policy, that’s fine. But they certainly can’t blog about their companies’ trade secrets or intellectual property. The employer can say the employee disclosed trade secrets in violation of the confidentiality policy. The employer can’t say, ‘You made us look bad by telling everyone why you don’t like our new vacation policy.’
Sheri L. Giger is an attorney with Jackson Lewis LLP. Reach her at (412) 232-1983 or [email protected].