Hiring in the Age of Social Media

By Andrea Morris


Every company wants the best candidate for the job. Your company is no different. The only proven way to recruit the best possible people possible for your team is to have a thorough background investigation conducted by a third party. You could choose to conduct the investigation yourself, but beware, numerous court rulings have been found against employers for inadvertent discrimination.

As an employer, you must be aware of the liabilities your company may be exposed to should you choose to conduct a background investigation yourself. Including social media profiles in an investigation you conduct on your own only exposes your company to further liability. Impermissible data abounds in the world of social media. It’s nearly unavoidable. As does just about everyone on social media, candidates will, more often than not, list in their “bio” or “about” section a whole host of personal, impermissible, protected data including but not limited to: the hiring candidate’s race, gender, age, political affiliation, religion, nationality, disability status, marital status, or other protected status.

In the case of Gaskell v. University of Kentucky, an applicant successfully sued and was awarded $125,000 following the denial of a position after impermissible information was relayed to the employer.

“The plaintiff was rejected for employment as a scientist after another employee circulated an email detailing the plaintiff’s religious views — which were visible on the plaintiff’s personal website — to members of the hiring committee.  The Gaskell case serves as a cautionary tale: Even if the impermissible information is not used in making the employment decision, the mere fact that the employer accessed the information may infer improper motive (Morgan & Davis, 2013).”

Mistaken identity on social media can also pose a major liability. How can you determine which Facebook profile belongs to the hiring candidate when 25 identical names are listed? Do you have the license and/or sources to verify this information? What about inaccurate or deliberately false information? Let’s say your hiring candidate has listed “Graduated from Harvard University” in his Facebook bio. Is that information truly accurate? Do you know how to legally validate this claim?

As an employer, you may choose not to include social media information at all in an investigation.  However, it is still possible to risk a discrimination lawsuit merely by satisfying your curiosity outside the scope of an official background investigation. Should you ever find yourself wondering whether or not to look up your hiring candidate’s Instagram, remember to err on the side of caution.

Employers may risk claims of discrimination if they browse through candidates’ social media accounts in the hiring process (Lambert, 2016).

The Forbes article The 10 Dos and Don’ts of Conducting Employee Background Checks is more straightforward in its warning, urging companies to do the following:

Do use a professional agency to process your background check. Great screening companies will do a far better job of locating the information you want.  They have the experience and processes to be accurate and efficient.  They also prevent you from viewing data that might be a violation of state or federal law.

Don’t run a limited search yourself. You can’t find everything online. So much of the concrete — legally obtained — data for a background check can only be conducted by a licensed background check firm.

It is possible to significantly minimize your company’s liability for hiring discrimination by contracting an objective and unbiased third-party agency which specializes in the legalities of both employment law and background investigation, to access the information and relay only pertinent hiring information back to you, rather than risking the liability of conducting an investigation yourself.

At The Meurig Group, keeping your company safe from hiring discrimination liability is what we do. We make it our business to be aware of federal and state employment guidelines so you can focus on what’s important to you: hiring the best candidate for the job.  We can help.  Let us find out.


Works Cited

Belicove, M. (2012). The 10 Dos and Don’ts of Conducting Employee Background Checks. Retrieved from https://www.forbes.com/sites/mikalbelicove/2012/10/26/the-10-dos-and-donts-o-conducting-employee-background-checks/#30445fff4e2b

Lambert, A. (2016). 5 Ways Social Media Can Land Employers In Court. Retrieved from https://www.law360.com/articles/761008/5-ways-social-media-can-land-employers-in-court

Morgan, H. & Davis, F. (2013). Social Media and Employment Law Summary of Key Cases and Legal Issues. Retrieved from http://www.americanbar.org/content/dam/aba/events/labor_law/2013/04/aba_national_symposiumtechnologyinlaboremploymentlaw/10_socialmedia.authchecdam.pdf.http://www.americanbar.org/content/dam/aba/events

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