Is It Legal to Use Social Media Tools When Hiring?

Date: September 15, 2014

Google, LinkedIn, Facebook, Twitter—business owners should proceed with caution when it comes to hiring.

Social media has become a part of our everyday lives.
Going to lunch with a potential business partner? Check out LinkedIn to learn
about his or her business background prior to that important meeting. Trying to find
businesses in your area that could be potential customers? Google can help. But
when it comes to hiring a new employee, a quick Internet search of background
information on job applicants may get you into trouble.

In a 2010 Microsoft study, researchers found that
79 percent of surveyed U.S. hiring managers and recruiters had factored social
media information into the hiring process. Furthermore, 70 percent said they
had rejected candidates because of what they found. With this great flood of
information, looking up potential employees on social media has become a
contentious issue. Especially problematic is the balance between personal
privacy rights and allowing employers to use social media as a resource in the
hiring process. To navigate this terrain, small businesses should tread carefully.

Check your state law

A number of states have introduced and/or passed
legislation that prohibits employers from looking at certain information on
potential hires. In addition, some states have proposed legislation to prevent
employers from requesting passwords to personal Internet accounts to get or
keep a job.

Avoid websites that provide sensitive personal information

LinkedIn and similar
professional websites are often used by prospective employees for job
searching, so those sites are probably your safest bet when trying to learn
more about a job applicant.

Although it may be tempting to see the
“after-hours” activities of job candidates, websites like Facebook, Instagram
and Twitter may tell you more than you want to know about a potential new hire.
Remember, federal and state law prohibits you from discriminating against an
applicant who falls under a protected class (e.g., race, gender, age, sexual
orientation, disability). You could get into trouble (maybe even a lawsuit) if
that information is shown to have factored negatively into your hiring
decision.

Similarly, hiring decisions based on an applicant’s
genetic information, which includes things like a history of cancer in the
applicant’s family, are illegal.

Ultimately, social media can play an important role
in the hiring process, because the more you know about a job candidate before
you hire him or her, the better. But remember that all of the information on
the Internet that you can find about a potential employee is not necessarily
information you can use legally.

Have a legal question? Don’t hesitate to call the
NFIB Small Business Legal Center at 1-800-552-NFIB (6342).

Karen R. Harned is the executive director of the
NFIB Small Business Legal Center, www. NFIB.com/legal-center. This article is
intended to provide general information for reference only and should not be
considered legal counsel.

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