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The Slippery Slope of Social Media in Hiring

In the age of the electronic workplace, technologies like email, cell phones, text messaging, instant messaging and the internet all make for a much more mobile and accessible workforce. The advantages of nearly unlimited access can be profound for companies, increasing efficiency and productivity. Working smarter includes hiring smarter. Human Resource Departments are usually on the forefront of the technology curve, understanding, using and regulating how a company interacts with the fast moving world of the web. One of the fastest growing concerns around the HR water cooler is social media.  How do we, as a company, use social media to our advantage? Beyond marketing, social media sites such as Facebook, Twitter and LinkedIn have become one of the best ways to recruit new employees – a primary concern for HR. Sounds logical to research the candidates applying for new openings, using every means you have to insure the potential employee will fit into the company culture and become a productive member of the team.  It’s no different than checking references or running a background check, right?  Well, it is different.  With social media personal and professional lines are blurred. While information willingly submitted to the public domain is just that “public,” a general search through social media may reveal both factual and inaccurate information about a candidate.

The legal concerns start when information discovered through social media sites is used to screen or openly eliminate a candidate from consideration. Eliminating a candidate based completely on the data found through social media content, exposes the employer to the potential risks of liability, discrimination claims and non-compliance with regulations.

Discrimination: When viewing social media sites there is a significantly high probability of discovering potentially discriminatory information about an individual. With a wealth of personal information posted freely on social media sites, employers must carefully navigate through information such as marital status, religion, politics, social interests and children.  All of this has to be ignored and not influence the recruiter in the hiring process.  

Negligent Hiring: Profile information, while inherently personal and must be ignored in the hiring process, can prove to expose the company to a negligent hiring or negligent retention lawsuit.  If a candidate matriculates to an employee, and the company reviewed social media through the hiring process yet ignored derogatory information, and the employee is the perpetrator of a violent act in the workplace, then the company can be held liable for negligence.  

Obviously social media is a slippery slope. While invaluable in today’s electronic workplace, it must be understood and utilized appropriately.  It is common practice and within the legal rights of a company to employ social media to their advantage in recruiting and hiring – and this practice will and should continue.  However, employers should consult legal counsel before implementing a social media usage plan. A fully fleshed out social media plan will touch every aspect of the company from recruiting and hiring, marketing and development, to employee usage and address quickly developing law at both the federal and state levels. 

© 2023 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.National Law Review, Volume II, Number 234
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About this Author

Benjamin L. Riddle, McBrayer Law Firm, Litigation Attorney
Member

As a litigator, Ben’s first priority is to advise clients in a manner that keeps them out of the courtroom so that they can effectively predict and manage the cost of legal services. Ben has a diverse practice representing regional banks, private businesses, and non-profit entities in litigation and pre-litigation disputes. He has negotiated resolutions of commercial lease disputes, breach of contract claims, partnership disputes, construction defect claims, insurance and bad-faith claims.  Prior to joining Steptoe & Johnson, Ben practiced with the law firm of...

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