Risky Recruiting with Social Media

As a candidate for a position with XYZ Corporation, I would be foolish not to use all the social media tools at my disposal to draw a complete company picture. Using a variety of networks, I would try to determine XYZ’s online reputation; I’d research its products and its culture; I’d look for stories from current and former employees; and I’d look for a social media presence that was compatible with what I already knew.

Of course, the hiring authority at XYZ would be equally foolish not to check me out on every available network. In fact, one could argue—if not yet, then soon—that the company who didn’t scour the Internet for every tidbit about a potential new hire was being negligent.

It’s too soon to tell, but this scenario has been suggested as one of the real threats social media has introduced into human resources and the employment life cycle. Another possibly more serious threat is the charge of discriminatory hiring practices, stemming from the use of information that employers find on social media networks—information that would not/should not have come out during a typical interview. Ethical hiring managers are careful to avoid asking interview questions about religion, sexual orientation and the like; but what is the correct response when they find pictures or texts of such privileged information on a networking site?

On paper, that answer is easy: ignore the contraband and continue evaluating the candidate for all the right (i.e., job-related) reasons. In reality, however, those cards have already been played, and you can bet that even the most conscientious among us would find some job-related insufficiency to weed out candidates that didn’t meet our surreptitious criteria. Assuming that we were able to rise above such behavior, proving that we did so would present an exceptional challenge.

Renee Jackson, an associate with the law firm of Nixon Peabody, wrote about these risks in a January article for the National Law Journal. She warned that “employers must address their use and misuse [of social media] before, during and after an employee’s tenure.” She confirms that employers may face liability for using information learned about a candidate from a social media site. Protected class status—race, age, disability, religion, etc.—are off limits and cannot be considered in hiring decisions. She echoed what I’ve read in other places: that it would be hard for an employer to prove that it viewed, but did not use, the information from a social network.

Jackson also lists some information employers can lawfully use in their decision-making. Illegal drug use, poor work ethic, poor writing or communication skills, feelings about previous employers and racist or other discriminatory tendencies that may be revealed online are fair game. And, in a tongue-in-cheek warning to applicants, she reminds us that employers may “lawfully consider an applicant’s general poor judgment in maintenance of his or her public online persona.”

As social media permeates the workplace, greater access to information brings opportunities and risks for employers and employees. Essentially, both parties have to be alert and weigh the benefits against the risks of using social media-both on and off the job.