Hiring a new employee is a major investment. Not surprisingly, many professionals utilize social media to screen potential candidates prior to making a hiring decision. Social media can help to confirm a candidate’s professional qualifications and provide insight whether the candidate is a good fit. At the same time, some employers may use social media to identify potential reasons to reject a candidate, such as posting compromising photographs or making inappropriate statements. Employers may feel justified in disqualifying a candidate based on their social media activity; however, doing so for the wrong reasons could violate a candidate’s rights and give rise to liability.
Earlier this month, officials from the EEOC and NLRB held a panel discussion in Pennsylvania warning employers of potential legal dangers of using social media in the hiring process. Although employers are permitted to investigate an employee’s background information, or social media activity, they must be particularly careful that they do not make hiring decision based on such information in a manner that violates state or federal law. Notably, under Title VII of the Civil Rights Act of 1964 and other federal antidiscrimination laws, employers are prohibited from failing to hire a job candidate on the basis of race, color, national origin, sex, religion, disability, genetic information, or age. Further, pursuant to the National Labor Relation Act, an employer may not restrict the right of employees to self-organization, or to engage in activities for the purpose of collective bargaining.
Employers who make hiring decisions about a candidate based on activity that could be perceived as related to a protected class run the risk of violating antidiscrimination laws. This includes adopting hiring policies that, while facially neutral, have a disparate impact on any one class of people. Likewise, employers should be cautious about flagging pro-union sentiments or other speech advocating employee rights, which could be interpreted as infringing on an employee’s right to organize.
While social media advances have changed the landscape of professional hiring, employers must remain cognizant that existing laws still apply. Information that previously could have remained unknown to a hiring manager may now be readily available through social media. A would-be employee’s medical condition, pregnancy or protected status could be disclosed through social media but not through a resume or telephone conversation or even an in-person interview. Accordingly, the employer may be susceptible to a claim that a hiring decision was made based on an improper purpose. As a result, employers seeking new candidates must tread carefully when using social media in the hiring process.