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Can Employers Use Social Media in Making Hiring Decisions?

While it is expected that employers will take all possible steps to properly vet job applicants, technological advancements have created many new issues for employers and employees to consider. It has become commonplace for employers to conduct an online search or to look at available social media profiles of prospective employees. This is a tricky subject, though. Depending on what information is found and how it is used, an employer could be facing a discrimination lawsuit.

Searching Social Media

As we all know, social media profiles can be the sources of such a wide variety of information about anyone who feels comfortable enough to post it. However, that would include certain information that involves the protected categories like race, color, religion, national origin, ancestry, gender, pregnancy, age, physical or mental disability, veteran/military status and genetic information. Most of this information could be discovered simply from a quick glance at someone’s profile on Facebook. If any of that information is used or appears to have been used by an employer in making a hiring decision, that employer could face a discrimination lawsuit. There may also be discrimination claims if the same applicant screening process is not used for all applicants. Some employers who feel that online searches are an important means of researching applicants to determine jobrelated characteristics try to avoid the appearance of bias by establishing a distinct group of people responsible for this type of research and requiring them to filter out any non-job-related information before passing it on to the decision makers. This may eliminate the use of protected criteria in making hiring decisions.

Conducting Employment Background Checks

Another issue that arises in the employment context is the use of third-party services to perform employment background checks before making final hiring decisions. Pursuant to the Fair Credit Reporting Act, employers must inform applicants that this investigation will be performed and must obtain consent from the applicant. If the applicant is not hired based on information obtained in the report, that fact must be disclosed to the applicant.

Current Employees Need to Be Careful About Their Social Media Presence

We all know that “at-will” employment means your employer has the right to fire you for nearly any reason. Complaining openly about your supervisor, or management in general, is not the wisest thing to do if you want to keep your job. However, we should all be able to voice our opinions or complaints without fear of retribution, at least under the First Amendment. Nevertheless, be very careful what you say on social media about your employer or co-workers. If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Wrady & Michel, LLC. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!