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Assuming that employers properly obtain personal information about an applicant from social media sites, employers still need to be careful to avoid certain risks associated with using such information to make employment decisions. While it may seem a great idea to use information obtained through social media to help make hiring decisions, it may not always be wise to do so. In certain instances, using information provided by Facebook, LinkedIn, Twitter and other social media sites may expose employers to liability for such claims as discrimination and negligent retention and hiring.
In addition, if the employer learns from Facebook information about an applicant’s protected characteristics that is not apparent from the application or interview, such as the fact that the applicant is pregnant or disabled or has a father with cancer, and the employer does not hire that applicant, the employer may be exposed to liability. Such characteristics about an individual generally are protected by state and federal discrimination laws.
If the employer used this information to make a decision not to hire the applicant, the employer likely is liable for discrimination. Even if the employer did not use this information in the hiring decision, the fact that the employer obtained this information prior to making a determination may cause the applicant to believe that discrimination has occurred and file a charge with the Equal Employment Opportunity Commission.
On the other hand, there may be instances where an employer’s use of such information is appropriate. For example, if a private employer discovers that an applicant has posted disparaging remarks about the employer, its clients or other individuals, the employer generally may use that information in deciding whether to hire the individual. Such disparaging remarks are likely not protected speech in this instance and, indeed, may be an indicator of the individual’s ability to be successful at the particular place of employment.
An interesting conundrum may arise in other situations, such as where an employer learns of information about an applicant that suggests a negative tendency, yet the employer still hires the person. For example, if a private school discovers that a teacher applicant was bragging online about partying with his students, and the school still hired the applicant, the school may expose itself to a possible negligent hiring claim down the road if the individual engages in misconduct with his students.
The message is that there is no single bright line rule for using information from social media sites to make hiring decisions about prospective employees. The answer largely depends on such factors as the type of employer involved and the type of information at issue. To facilitate proper use of such information, an employer should have a social media policy in place and should train its managers on the policy.
Lori Higuera, a director with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.