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Too Much Information

If you are Googling prospective employees or checking out their social media profiles, you could be running afoul of anti-discrimination laws.

June 2015, F&I and Showroom - Feature

by Dave Druzynski

Social media is a hot topic among government agencies these days, and car dealers have been finding themselves on the losing end of recent court battles. Why is this? Lawmakers have failed to keep pace with emerging social media technology, so government agencies and courts are forced to apply outdated rules and regulations to new cases — and they have not always been siding with employers.

Let’s focus on the use of social media in the hiring process. If done properly, you can gain valuable information on job applicants and save yourself from the costs and headaches associated with a bad hire. If done improperly, you can find yourself up to your ears in discrimination lawsuits.

Protected Information
Have you ever Googled job applicants or looked at their social media profiles? If so, you may have inadvertently accessed information that is protected by law. The U.S. Equal Employment Opportunity Commission (EEOC) is the agency tasked with enforcing federal anti-discrimination laws. These laws prohibit discrimination against individuals on the basis of age, criminal records, disabilities, gender, national origin, race, religion and more.

If you use social media to uncover any such information on a prospective candidate and fail to hire them — even if you did not discriminate against this person in any way — the fact that you accessed this information can still pose a problem. The National Labor Relations Board (NLRB) and the EEOC are very clear in stating that it’s a violation if there is any evidence the person doing the hiring used protected information to make his or her decision. And in addition to federal law, you also have state and local laws to consider.

When faced with a discrimination charge, you have to be able to prove that you did not consider this information in your hiring process. Does this seem like HR paranoia to you? Think again!

In a fairly recent court case (Neiman v. Grange Mutual Casualty Co.), a job applicant sued a prospective employer for age discrimination. The employer argued it did not know the applicant’s age at the time of the hiring decision. The applicant countered that the company must have known he was over 40 because he had posted his college graduation year on LinkedIn. The court agreed that it is not difficult to determine if someone is over the age of 40 based on his or her college graduation year. This was enough for the judge to deny a motion to dismiss and the case was sent to trial.

The Case for Searches
On the opposite side of this argument, a lot of valuable information can be gained by searching an applicant’s social media history. There have been countless incidents highlighted in the news in which employees posted inappropriate comments or pictures on social media. You may have seen the viral video of dealership employees in Massachusetts berating a pizza delivery person. That incident inspired websites dedicated to getting the entire staff at that dealership fired.

Don’t you want to know if people with this character and level of judgment are interviewing for positions at your store? If potential customers are researching you and your salespeople, this could very well prevent them from doing business with you.

In a recent CareerBuilder survey, 43% of employers said they use social networking sites to research job candidates. Of these, 51% said that they have found content that caused them to nix a candidate. The most common reasons for passing on a candidate were provocative or inappropriate photos or information, references to drug or alcohol use, badmouthing previous employers and coworkers, and discriminatory comments and lies about job qualifications.

Interestingly, 33% said they found content that made them more likely to hire a candidate because they conveyed a professional image, backed up their professional qualifications and demonstrated they would match the culture of the organization.

Ultimately, you are left with three choices:

  1. Do Not Search Social Media: If you decide to roll the dice and don’t do any searches at all, make sure your hiring managers aren’t running rogue searches behind your back.
  2. Outsource Social Media Searches: More and more background check companies are performing these types of searches as a service, along with criminal background checks and even credit checks. They offer a layer of protection because they will only send you relevant information, which means you will never have access to protected information. The only downside is that you are subject to Fair Credit Reporting Act (FCRA) requirements.
  3. Insource Social Media Searches: Have a trustworthy employee who is not involved with the hiring process run the search. Train him or her on the anti-discrimination laws and then train the employee again. Define what is to be searched and at what point in the hiring process it will be searched. They can send along only relevant information to the hiring manager and keep any protected information to themselves. I cannot stress enough that this needs to be done by an employee who can be trusted to keep information confidential.

Never, under any circumstances, ask an applicant to provide you with their social media username or password. Be sure to abide by each site’s terms and conditions and only search for information that is publicly available. Read up on federal stored communications and wiretapping laws, and keep records of your search criteria and the information sent to the hiring manager.

Additionally, don’t rely on search results without verification. In fact,  if you can’t be sure the candidate posted the information in question, disregard it.

Finally, please note that I am not a lawyer and the information contained in this article is for general information purposes only and is not designed to be comprehensive. For legal advice, you must consult your own attorney.

Dave Druzynski is director of human resources for Auto/Mate Dealership Systems. Contact him at dave.druzynski@bobit.com.

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