The Internet Age and, more specifically, the social media age have added a new element to the hiring process. Rather than relying predominantly on what employees say about themselves on their résumés and cover letters, or what their handpicked cheerleaders say about them in letters of recommendation, employers can easily type a candidate’s name into a search engine, like Google, and gain additional insights into his or her personality and character.
As one expert points out, employers should be careful how (and if) they use a candidate’s social media personality in their hiring process. As an initial matter, we should point out that employment at will is generally the law of the land in the United States.
This means that—aside from some specific exceptions on a state-by-state basis—employees can quit a job whenever they want, and employers can fire employees whenever they want, i.e., “at will.” So, in general, there’s nothing prohibiting employers from firing or refusing to hire someone based on his or her social media activity.
However, there are some exceptions that can raise red flags!
It’s well known that employers cannot base employment decisions on factors related to an employee’s being a member of a protected class (race, religion, ethnicity, gender, etc.). Traditionally, the application process shielded much of this information—HR departments also often screened out any identifying candidate information during the applicant review process.
“Googling” applicants, though, readily reveals such potentially protected information through photos that are commonplace on sites like Facebook and Instagram. Proving that such factors didn’t play a part in making hiring decisions can be challenging.
In addition to laws related to discrimination against employees based on various personal characteristics, some states have statutes protecting specific off-duty behavior, such as smoking and union activities.
Again, researching employees via the Internet can reveal their engagement in such activities and call into question whether hiring decisions were made based on those factors.
Beyond the risk of running afoul of discrimination laws, there is a risk that those doing the hiring may overlook otherwise qualified candidates because they simply don’t like them based on their social media personality. Maybe they have different political views or even different tastes in music, for instance.
How can you minimize the potential for this type of bias creeping into the hiring process?
Eric B. Meyer, partner at FischerBroyles LLP, suggests that if someone is screening social media for information about candidates, he or she should not be the same person making the final hiring decision. In addition, he suggests, they should be given an objective list of red flags to look out for—i.e., hateful speech, drug use, etc.
Social media has added some interesting, and potentially risky, nuances to the candidate screening process. And, while there is generally nothing to prohibit employees from declining to hire someone for any reason, there are certain exceptions that employers, HR professionals, and hiring managers need to be well aware of.