Social media sites give potential employers access to personal details

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Q. How are employers using social media in the hiring process?

A. Social media provides a free, easy-to-use hiring tool that gives employers access to information that might otherwise be unknown. Hiring managers can learn about applicants’ extra-curricular activities, what they think of their current employers, political views and more.

With millions of active users on Facebook, LinkedIn and Twitter, an employer is likely to find potential job candidates on one or more of these forums.

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Q. How many companies use social media as a hiring tool?

A. In June 2009, CareerBuilder conducted a survey of 2,600 hiring managers and found that 45 percent of them screened job seekers using social networking sites.

Information that may have impacted these recruiters’ hiring decisions included good or poor communication skills, provocative and inappropriate photos or comments, confirmed or false qualifications, photos of alcohol or drug abuse, and the level of creativity or professionalism displayed.

In fact, 35 percent of the surveyed employers found information that caused them not to hire a candidate. On the other hand, 18 percent said they discovered information that encouraged them to hire an applicant.

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Q. What content from social media sites can employers NOT consider when making a hiring decision?

A. Using social networking sites to screen applicants may unintentionally expose hiring managers to protected class factors and other personal information. Federal and state laws dictate that an applicant’s age, race, color, national origin, religion, gender, disability and veteran status cannot be considered when a company is screening job applicants.

The recently enacted Genetic Information Nondiscrimination Act protects a candidate’s genetics and family medical history as well.

Additionally, the National Labor Relations Act prohibits employers from conducting surveillance of protected concerted activities and making hiring decisions based on whether an applicant is union-leaning.

Finally, an employer’s unauthorized access of stored electronic postings may also violate the federal Stored Communications Act or common law privacy rights.

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Q. What are some “best practices” for hiring managers who are using social media sites to screen applicants?

A. Consistency is the key for hiring managers who use social media sites to screen job applicants. Employers become vulnerable if they are selective in picking which applicants to screen online, or if they evaluate differently the information found on certain applicants.

When employers are exposed to an applicant’s protected or personal information, they must show that it did not influence their decision. To avoid costly refusal-to-hire claims, an employer that screens through social networking sites should have a non-decision maker undertake such background checks.

While reviewing the content, only job-related criteria should be considered. Documentation is critical. Hiring managers should maintain records of the social networking tools used, their findings and explanations of why an applicant was or was not considered or chosen for a particular job.

This article was provided by the Ohio State Bar Association and prepared by John W. McKenzie, a shareholder with the Akron labor and employment law firm Kastner Westman & Wilkins, LLC, which represents management exclusively.

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