At HR Law & Solutions earlier this year, we brought back Employment Law IQ: our employment law game show, designed to help attendees spot potential legal issues and learn strategies to mitigate risks from those issues. As promised at the seminar, we will share a few scenarios here on the blog over the next few weeks to further test your Employment Law IQ.

First up? Social media and hiring. Social media policies and privacy settings can be source of pain for employees and employers alike, but they are critical in this electronic age. But the considerations go beyond social media policies — employers must also take care in how they use information learned from social media and other online searches during the employment process.

Question. What would you do in this scenario? You are looking to hire a general manager. While doing an online search of the top candidates, you discover that one of the candidates has blogged about his recovery from alcohol addiction. Based on your online discovery, you decide to hire another candidate who is as equally qualified. Which of the following statements is correct?

A.  Your hiring decision is unlawful because all online searches of applicants violate the EEOC guidelines on pre-selection criteria.

B.  Your hiring decision is lawful because the first candidate self-disclosed his status as a former alcoholic.

C.  Your hiring decision is unlawful because it is based on the first candidate’s disability.

D.  Your hiring decision is lawful because the first candidate is not disabled under the ADA.

CORRECT ANSWER IS C. Employers may use publicly available online information in making hiring decisions. However, this practice carries risks. Unfettered searches of candidates’ online profiles can put an employer in the same difficult position as if they had asked the job candidate an improper question in an interview. Your online search revealed protected EEO information (i.e. history of a disability). You should not have considered the former alcoholism in your hiring decision.

HR TAKEAWAY. Employers can legitimately obtain useful information about job candidates from online searches; however, they should avoid using, or having the perception of using, otherwise protected information they obtained online. Put appropriate controls in place if you use online searches as a part of your hiring procedures. Consider having a neutral person who does not make hiring decisions screen information gleaned from social media sites, then prepare a report that is scrubbed of any information that is impermissible to use in the hiring process.


Image Courtesy of UMF on Flickr