Social media has given people the freedom and comfort of sharing many details of their personal lives. What dangers lurk when an employer is tempted to use information learned from an employee or applicant sharing too much information?
An employer may be tempted to use the internet and social media outlets to obtain as much information as they can about a potential new hire or existing employees; however, an employer does this with risk and must proceed cautiously in using any information it obtains. Under Federal law an employer cannot make any employment decision based on race, religion, gender or national origin or based on someone being over 40 or having a disability. Different states afford additional protection to employees and applicants. For instance, many states have Off-Duty Conduct laws that prohibit an employer from taking any adverse employment action based on an individual engaging in certain lawful conduct when off-duty, such as smoking.
An employer or potential employer through use of social media outlets may obtain information that it otherwise would not have, and if it uses this information in connection with an employment decision, it may expose itself to a potential claim of discrimination or wrongful termination and potential damages in connection with such a claim.
For example, a legal action was brought by an individual against the University of Kentucky for not hiring the plaintiff because of his religious beliefs that were discovered only through a link to the applicant’s personal website located through research of the applicant on the internet. The case, Gaskell v. University of Kentucky, was eventually settled resulting in the defendant incurring legal fees and damages based on a claim for a decision allegedly made by the University with information it obtained about the applicant on the internet.
How can an employer balance the desire to obtain relevant information about an applicant or employee that is publicly available without allowing a decision to be illegally tainted by information it would or should not otherwise have?
Searches of information should be done by employees who are removed from the employment decision process who can filter the information obtained and only provide the decision makers with information that should be available for consideration without including information that reveals any characteristic or behavior that indicate a protected factor.
A guideline for someone filtering information is, is this something about which the company would be permitted to ask in an interview? If the answer is no, the information should not be shared with anyone who is in the position to make a decision as to hiring, firing or a promotion.
Having such a procedure in place cannot guarantee that you will not be exposed to a claim or damages for an adverse employment action based on information obtained from the internet; however, the procedure and adherence to it will provide the employer with a defense.
The comments in this blog reflect my own views and not those of LP Innovations, Inc. The comments do not constitute legal advice and readers are encouraged to consult their own counsel.
By Elizabeth Marx Wexelblatt, General Counsel