Founder and Managing Partner
Do you run internet searches or check social media accounts on job applicants? For some employers the internet has become a tool to further screen prospective employees. However, employers must be careful in how they go about gathering such information because search engines and social media sites may expose the employer to information involving protected categories. For example, an internet search may reveal that the applicant is a certain age, was born in a certain foreign country, or practices a certain religion. But employers shouldn’t make employment decisions based on these characteristics. So an aggressive plaintiff’s attorney might argue running internet searches or checks of social media accounts on job applicants is evidence of discriminatory hiring practices, even though you are not seeking such information, but encounter it in the course of a search.
So what can an employer do to avoid this risk? You might consider not running such searches, or having someone not involved in the hiring decision run them. That person can be directed to screen out any information pertaining to protected characteristics and only pass along to the decision-makers only information that can properly be considered in making the hiring decisions. A written policy documenting this process could be helpful if it also describes the nature of information to be screened out and how the allowable information is transmitted to the decision-makers. And you might further consider destroying the screened out information.
Some attorneys may make disparate treatment claims if you only use social media to recruit, basing such claim on statistics that indicate that applicants in protected age categories are less likely to search for jobs via social media. So you might want to consider simultaneously using other more traditional methods of recruiting. Of course, all of your internet/social media search policies and job postings should be reviewed by counsel prior to implementing them.