Many employers search social media to evaluate a favorable job candidate. This is not without risks. Problems associated with hiring decisions based, in whole or in part, on information presented on social media can subject companies to unnecessary legal exposure and discrimination claims. In a previous issue of “Now You Know It,” Evan Chall explained Michigan’s protection against employers requesting login information for personal social media accounts. However, even without login credentials, much information is readily available to view by the public. Keep the following in mind when considering social media in the search for applicants and the hiring of employees:

• Lessen the possibility of discrimination claims. Characteristics that may not be evident when assessing candidates’ résumés – race, religion or age – are much more apparent when reviewing their social media accounts. Employers who use social media as a tool to evaluate candidates when hiring can potentially forfeit their ability to claim that they were unaware of such protected characteristics if a claim is brought against them.

• Become familiar with background check laws. Many employers turn to third party companies to conduct background checks on candidates. These companies often redact protected class information from social media content, limiting the added legal risk to the employer. However, the Fair Credit Reporting Act (FCRA) stipulates that the candidate must be made aware of the check and provide consent in writing.

• Do not summarily rule out those who do not have social media accounts. While many older adults are actively engaging in social media, they still are not as involved as America’s youth. Ruling out candidates based on a lack of social media involvement could open up employers to claims of age discrimination.

• Recruit broadly across categories. If a job opening is advertised on a social media website that specifically accommodates or excludes certain groups, or uses particular marketing algorithms that filter out certain groups, then it could insinuate that staffing efforts are unlawfully biased.

• Stay current on National Labor Relations Board developments. The National Labor Relations Board (NLRB) has been focusing on employer policies regulating the use of social media by employees. The National Labor Relations Act has generally protected employees using social media to participate in discussions about unions, wages or other employment terms and conditions. Employers are discouraged, however, from using social media to eliminate candidates based on such “concerted activity.”

In short, careful and equitable treatment of social media activity is a good practice to avoid claims of possible discriminatory employment hiring processes. If you have any questions about this, or any other business or employment matter, please contact Wright Beamer, and we’d be happy to assist you!