Why You Could Be Breaking The Law By Researching Job Candidates Online

Photo: Flickr/Cara Photography

When you’re looking to research a product, where do you go? The Internet. When you’re hoping to find out more about a business, where do you go? The Internet. So, it makes sense to go to the Internet to check out potential employees, right? “It is generally not, per se, wrongful or otherwise illegal to research an applicant’s online social media profiles, but there are specific obligations if the investigation involves an applicant’s financial and credit history, driver’s licence verification, and related information that may fall under the U.S. Fair Credit Reporting Act,” says attorney Jason Shinn of E-Business Counsel, PLC. “I believe and recommend that employers should make the most of available technology and resources to find the best candidates for employment, which clearly includes social media related sources.”

However, this research comes with plenty of risks, says Shinn. He advises implementing “a written policy that clearly spells out what information or sites will be reviewed, who will conduct the review, and what records will be maintained.”

Such a policy is advisable, according to Shinn, in the event that a candidate is rejected after being researched online.

“For example, assume an employer receives an applicant’s resume and searches for that applicant’s Facebook profile or another social network profile. Let’s further assume that the employer discovers that the applicant is of a certain race, religious faith, is pregnant, or is disabled. This knowledge could create a link between a denial of employment and a violation of applicable employment or labour law. This is true even if this knowledge had no bearing on the employer’s hiring decision,” Shinn explains. 

Beyond documenting your organisation’s process, John McKenzie, an attorney with Kastner Westman & Wilkins in Akron, Ohio, has another suggestion: “It is best if a non-decision maker screens the candidate via social media sites so that only relevant qualifications are relayed to the hiring manager.”

In addition to discrimination, Patrick Richter, an attorney and partner in the Austin, Texas, office of Shannon, Gracey, Ratliff & Miller, LLP, says the most common legal issue associated with employers monitoring–and taking action based upon–candidates’ use of social media is invasion of privacy. 

“In most states, a person has a right to be free from invasion of privacy, and an employer’s viewing of online activity could cross that line. However, to maintain a claim, a candidate would have to show that she had a reasonable expectation of privacy — something that might be hard to show given the public nature of online activity,” Richter says. “Nonetheless, privacy is an issue that employers should consider before using a candidate’s online activity in the decision-making process.”

Max Drucker, CEO and president of Santa Barbara, Calif.-based Social Intelligence, adds, “There is also the risk of an employer making hiring decisions based on erroneous information, as they are not necessarily trained or experience in online research.”

Social Intelligence Hiring is a background screening service that enables employers to navigate social media. “We make no attempt to get around an applicant’s privacy settings,” says Drucker. “We only review public information, and only information the candidate has created themselves.”

Bruce Hurwitz, president and CEO of Hurwitz Strategic Staffing, Ltd. located in New York City, explains that everyone has two online presences: one you control and one you do not.

“The first presence is what you do yourself online. The pictures you post on Facebook. Are you holding a beer in one hand, groping someone with the other, and sticking your tongue out? Why would an employer want to hire you?” says Hurwitz. “I won’t submit them. Regardless of the job description, my clients are all looking for professionals who will not embarrass them.”

Hurwitz continues: “The second [online presence] is the one you have no control over. If people dislike you, they can write whatever they want and there is little you can do about it. Good employers will ask questions, and based on a candidate’s responses, no doubt dismiss it out of hand. It’s the first presence that’s the issue.”

As an employer, what “red flags” should you be looking for when researching job candidates online?

 “Red flags are not always pictures holding a beer bottle…but that is one of them. Red flags can be something as simple as a typo on the site or a grammar problem. Red flags can also be any post or material which suggests controversy, such as belonging to an organisation that is not very popular or that is associated with an unpopular position on an issue,” says Larry Chiagouris, a professor of marketing at Pace University in New York City. “We just completed research on this topic and will be issuing a press release on it at the end of March…76 per cent of all students likely have a problem with their Facebook profiles.”

Rusty Rueff, Glassdoor.com career and workplace expert, adds: “Hiring managers will look for clues as to how a candidate speaks of her past employer and colleagues. If a candidate constantly left negative comments about her colleagues, an employer might want to think twice about what this person could do to their company’s culture and employee morale. Social media also gives us our best look ever into who the person considers their peers and contemporaries. If leaves don’t fall far from the tree, taking a look at who the connections are can say a lot.”

Although it may be hard to imagine in today’s tech-savvy world, what if you can’t find the candidate during an online search?

“If you can’t find a job candidate online, it shouldn’t mean that a candidate automatically gets dismissed,” says Rueff. “Instead, job candidates and employers should think about what is involved in the job opportunity. If a candidate has little to no online presence, and social media has little to do with the job, employers can use this insight during a job interview to simply find out why.”

To be sure you are someone employers bring in, “have two online profiles, one for your private life and one for your professional pursuits…and never blend them together,” Chiagouris says.

Interestingly, many people are blending their networks, according to new data from MyWebCareer, a free online service that evaluates your social and business networking profiles to generate a personalised Career Score. Based on data collected in Feb. 2011 from 5,000 MyWebCareer users, on average, 23% of LinkedIn connections are also Facebook friends — a far cry from keeping the networks completely separate. 

Similarly, 63% of the Facebook profiles analysed listed at least one employer, a further sign of the blurring of lines between professional and personal networking. 

“My best piece of advice,” says Rueff to job candidates, “would be to get familiar with your online persona and make sure your online brand complements who you are and how you want to be perceived. A strong personal brand can help communicate where you’re headed and underscore the value you bring to your trade and industry.”

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