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CHECKING APPLICANT’S SOCIAL MEDIA POSTS COULD BE ASKING FOR A LAWSUIT

QUESTION: Before I interview applicants for a job, I check their social media presence, as a way of seeing if there are any major red flags (drug use), see if they use social media, and as a way of getting insights into who they are. A co-worker in Human Resources says I could get into trouble doing this. I don’t see how.

ANSWER: You’re part of a trend: More and more employers are checking an applicant’s social media presence and posts as part of the application process. In 2017, on-line recruiting organization careerbuilder.com found 70 percent of employers looked at applicants’ social media as part of the hiring process, up from around 40 percent in 2011 (survey results range from 30 percent to more than 50 percent). Checking a candidate’s FB, Twitter or Instagram activity is so popular, some firms even hire specialists to do this online snooping. And you’re right – it’s not illegal, but it is risky!

So what’s the problem? While you may learn truly disqualifying information about a job candidate – like drug use, a criminal record, or an indication that the applicant’s resume is a fabrication – you may also learn other details about the applicant. A candidate’s race, religion, national origin, disability, pregnancy, gender and (in Michigan) weight may not be considered in the hiring process under Title VII of the federal Civil Rights Act and under Michigan’s Elliott-Larsen Civil Rights Act. A candidate’s sexual orientation/gender identity is not currently protected under the law, but that lack of protection has been cast into doubt by several recent decisions in the federal courts, so it would be wise to avoid consideration of that factor, too.

Once you have been exposed to this information about a protected status, there is a chance it may affect your judgment when you make a decision to hire, or even to interview. Unsuccessful candidates can claim that your decision was based on consideration of these protected factors, and not on their lack of qualifications, or the presence of a better candidate. Even when these claims have no merit, your company may still have to spend time – and usually hire an attorney – to defend against them.

If a social media search is an important part of your screening process, your company might consider hiring an outside firm to do the work – and ask them to forward only legally permissible information about the candidates to you for your consideration.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
[email protected]
www.gwinnlegal.com