It’s no secret that car dealerships have often been forced to defend themselves against discrimination claims by employees and agencies like the Equal Employment Opportunity Commission. As a result, many dealerships have instituted comprehensive human resource programs to avoid potential problems. However, new technology brings new challenges.
As the use of social media grows, more and more dealerships are using the Internet to screen potential employees. Many hiring managers find these sites particularly useful because they perceive this information to reflect a more accurate representation of the applicant beyond the interview. This influx of information about applicants seems like a great way to test your ability to “fit” into a company.
While social media can allow employers to obtain a wealth of information about job applicants, hiring managers who even casually use these tools to gather information about a potential employee could expose the dealership to legal risk. Given the real potential for inappropriate and illegal uses in the recruitment context, organizations should carefully consider how, if at all, they use the sites when selecting candidates.
Discrimination Claims – When a job candidate is the subject of a social media search, there is a chance that the search will reveal information that would be off-limits to an interview, such as age or marital status. Hiring managers must be very careful about using private information that people post to make hiring decisions. The fact that an employer takes advantage of such information could pave the way for allegations of discrimination if the employee or applicant believes that the employer used such information to make an adverse employment decision. It may create a risk that this protected class information is actually being considered or, even if it is not, putting your organization in the position of having to defend a claim knowing that this information existed on the sites you visited. Risk factors include:
- Information about age, race, religion, sex, disability, or other protected characteristics, such as pregnancy, illness, or disability. For example, a person’s Facebook page may reveal their religion. Once an employer knows that information, the fact that the employer knew the potential employee’s religion can be used in an employment discrimination lawsuit.
- Check social media or the Internet only on applicants of a certain race or gender.
- Search across all applicants, but use the same information differently against a particular type of applicants. For example, if all of your applicants had pictures of themselves drinking alcohol in public, but you viewed that fact more negatively against women, that could be considered discrimination.
- Reject an applicant based on conduct protected by lawful off-duty conduct laws.
- Rejecting an applicant because of their political activities may violate state constitutional law.
To avoid these legal hurdles, you may decide it’s better not to collect that information at all, so you can say you didn’t have access to it. Another procedure would be to have someone other than a hiring manager or HR decision maker conduct an online background check on job applicants. The person conducting the online verification should avoid sharing with decision makers any personal information about a candidate that is not relevant to the hiring decision. This person should be properly trained to prevent improper access and rule out information that cannot legally be considered in the decision-making process. Having a firewall between the hiring manager and social media information about job applicants makes it difficult for a plaintiff to later claim that the hiring manager discriminated against them based on a legally protected characteristic.
Invasion of privacy claims by potential employees – In general, a potential employee will have a hard time making this claim because they need a “reasonable expectation of privacy” and many people keep their social media profiles open to the public. However, it is clear that if the applicant is using the highest privacy settings and the employer somehow overcomes all of these barriers, the claim is stronger.
One point to consider is how the hiring manager will gain access to the candidate page. Many social media users have some degree of privacy set up in their settings. As a result, access to the candidate page may require “befriending” the applicant and the applicant accepting the application. It is not a good idea.
Using an outside agency to screen applicants – If an employer uses a third party to conduct job searches, the federal Fair Credit Reporting Act and applicable state background check law may apply. The Fair Credit Reporting Act governs “employment background checks for recruitment purposes” and applies if “an employer uses a third-party screening company to prepare the check.” Therefore, if an employer is using an outside resource to view social networking sites and provide information, the applicant must be informed of the investigation, given the opportunity to consent, and notified if the report is used to make an adverse decision. . It’s important to make sure that any company you use to conduct background checks follows the correct procedures and that your job applications contain the proper notices.
Best Practices for Using Social Media in Hiring Decisions:
- Develop a policy on whether or not the hiring manager will search the internet or social networking sites on hiring.
- If you decide to use social media in recruiting, search for applicants consistently and uniformly.
- Make sure that candidates are notified, in writing, about the use of social media by companies to collect information, for example, in job applications.
- Make sure that employment decisions are made based on legal and verified information. Don’t allow factors that have no relevance to job performance, such as race, age, or sexual orientation, to be considered. They are all states protected by law and using them as hiring criteria is discriminatory.
- Follow best practices to identify a legitimate, non-discriminatory reason for the hiring decision with documentation supporting the decision.
- Prohibit “befriending” a potential employee to learn things about him or her that the general public does not have access to.
- Discourage supervisors from being social media friends with their direct reports.