It’s no secret that auto dealerships have frequently been forced to defend themselves against complaints of discrimination by employees and agencies like the Equal Employment Opportunity Commission. As a result, many distributors have instituted comprehensive human resource programs to avoid potential problems. However, the 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 helpful because they perceive that this information reflects a more accurate representation of the applicant beyond the interview. This influx of information about applicants would seem to be a great way to assess your ability to “fit in” with a company.

While social media can allow employers to gain 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 grantee to legal risk. Given the real potential for inappropriate and illegal uses in the context of recruitment, 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 search on social media, there is a possibility that the search will reveal information that would be off limits in an interview, such as age or marital status. Hiring managers must be very careful when using private information that people post publicly to make hiring decisions. The use of such information by an employer 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. You can create the risk that this protected class information is actually being considered or, even if it is not, put 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 religion of the potential employee can be used in a job discrimination lawsuit.
• Check social media or the internet only for applicants of a certain race or gender.
• Search all applicants, but use the same information differently against a particular type of applicant. For example, if all of your applicants had photos of themselves drinking alcohol in public, but you viewed that fact more negatively against women, that could be considered discrimination.
• Rejecting an applicant based on conduct protected by legal 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 that it is better not even to collect that information, so that you can say that you did not have access to it. Another procedure would be for someone other than a hiring manager or HR decision maker to conduct an online background check on job applicants. The person doing 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 must be properly trained to prevent inappropriate access and leak information that cannot be legally 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 difficult time asserting 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 get access to the candidate page. Many social media users have a certain degree of privacy established in their environments. As a result, access to the candidate page may require “befriending” the applicant and the applicant who accepts the application. It is not a good idea.

Use an outside agency to screen applicants – If an employer uses a third party to search for job candidates, the federal Fair Credit Reporting Act and applicable state background check law will likely apply. The Fair Credit Reporting Act governs “employment background checks for the purpose of hiring” and applies if “an employer uses a third-party verification company to prepare the verification.” Therefore, if an employer is using an external resource to view social media sites and provide information, the applicant should be informed of the investigation, given the opportunity to consent, and notified if the report is used to make an adverse decision. It is important to ensure that any company you use to conduct background checks follows the correct procedures and that your job applications contain the proper notifications.

Best practices for the use of social networks in hiring decisions:

1. Develop a policy on whether or not the hiring manager will search the internet or social media sites during hiring.
2. If you decide to use social media in hiring, search for applicants consistently and uniformly.
3. Make sure candidates are notified, in writing, about the use of social media by companies to collect information, for example in job applications.
4. Make sure employment decisions are made on the basis of legal and verified information. Do not allow factors that have no relevance to job performance, such as race, age or sexual orientation, to be considered. They are all statutory states and using them as criteria for hiring is discriminatory.
5. Follow best practices to identify a legitimate, nondiscriminatory reason for the hiring decision with documentation to support the decision.
6. Ban “befriending” a potential employee to learn things about him that the general public does not have access to.
7. Discourage supervisors from being social media friends with their direct reports.