Ready, Set, Hire! An Overview of Legal Issues in the Hiring Process for Businesses (Part 5 of 6)

Social Media and the Hiring Process

The number of social media users makes it easier than ever to gather information about a prospective employee before they even walk in the door. In fact, there is even a catch phrase associated with doing so: “Facebook stalking.” Sometimes, however, employers would be better off not knowing about certain elements of a candidate’s background, given the legal issues that can ensue.

Legal Issues

There are only a few absolute legal rules that relate to an employer’s use of social media in the hiring process. First, it is a violation of the Federal Stored Communications Act to request an applicant’s social media password. Therefore, employers are limited to reviewing the public information on an applicant’s social media page. Additionally, employers still must abide by the Fair Credit Reporting Act, as referenced in last week’s blog entry. It is best practice to at least inform applicants in writing of your intent to utilize social media in your background check process.

One of the most significant risks to using social media at the early stages of the hiring process is that the employee may disclose his or her racial/ethnic background, religious beliefs, and even family and medical conditions. Since an employer’s knowledge of these issues at a very early stage creates an arguable obligation on the part of the employer to accommodate a prospective employee.

Lots of social media out there…and plenty of legal challenges too!

A Nightmare Scenario

Consider this scenario: You have an applicant for a management level marketing position, which involves a significant amount of public appearances on behalf of your company. The candidate performs extremely well during the interview process, and you elect to make an offer of employment, conditioned on completing background checks and a post-offer pre-employment physical exam. Given that the applicant will have a very public role for your company, you decide to review his or her social media presence. In doing so, you uncover a completely unexpected piece of information. The applicant has been fighting cancer, and has some upcoming medical appointments.

Now what do you do? On the one hand, you have very real business concerns, regarding whether or not you can move forward with hiring this individual in light of the upcoming treatment and likely missed time from work. However, at a minimum, the Americans with Disabilities Act requires employers to engage in the interactive process in order to determine whether or not there is a reasonable accommodation that will allow the individual to be able to perform the essential functions of the job. This must be counterbalanced against the undue hardship to the employer in hiring the applicant. In this case, in the event that you elect not to hire the individual, your best potential defense is to document a neutral basis for your decision, if at all possible.

While cancer may be an extreme example, remember that the definition of a disability under the ADA is very broad. That is, there may be a number of other medical conditions that are disclosed on social media that were not apparent during an in-person interview. Additionally, as noted earlier, many other protected classes can be disclosed via social media which would not otherwise be apparent.

What You, Business Owner, Can Do:

In addressing a nightmare scenario as above, it is important to not only have a handle on an employer’s obligations under Federal law throughout the hiring process, but also to be able to run issues like this by competent counsel, to help guide you through these murky waters. While the risks cannot be completely eliminated, they certainly can be managed effectively.

Next week, we will provide a more in depth review of federal laws regarding discrimination in the workplace and potential defenses.

This is a guest contribution by Eric J. Stark, Esq., of Caldwell & Kearns, P.C. in Harrisburg, PA. You can contact him via email or at 717-232-7661.

Caldwell & Kearns, P.C. is located at 3631 North Front Street, Harrisburg, PA 17110. They specialize in real estate, employment, business, and family law. Visit their website for more information.