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Posted: October 10, 2011

Caution: social media and hiring ahead

Employers need to handle Facebook info with care

Troy Rackham, John Balitis and Carrie Pixler-Ryerson

Assuming that employers properly obtain personal information about an applicant from social media sites, employers still need to be careful to avoid certain risks associated with using such information to make employment decisions. Although in the abstract, it may seem like a great idea to use information obtained through social media to guide hiring decisions, it may not always be prudent to do so in certain circumstances.

Indeed, in many instances, using information provided by Facebook, Linked-in, Twitter and other social media sites may expose employers to liability for such claims as discrimination and negligent retention and hiring. Employers need to be careful and appropriate when using information obtained from social media when making employment decisions.

On the one hand, if the employer learns from Facebook information about an applicant's protected characteristics that is not apparent from the application or interview, such as the fact that the applicant is pregnant or disabled or has a father with cancer, and the employer does not hire that applicant, the employer may be exposed to liability. Such characteristics about an individual generally are protected by state, federal, or local discrimination laws.

If the employer used this information to make a decision not to hire the applicant, the employer may be liable for discrimination. Even if the employer did not use the information obtained from social media in the hiring decision, the fact that the employer obtained this information prior to making a determination may cause the applicant to believe that discrimination has occurred and file a charge with the Equal Employment Opportunity Commission or the Colorado Civil Rights Commission.

On the other hand, there may be circumstances where an employer's use of such information is appropriate. For example, if a private employer discovers that an applicant has posted disparaging remarks about the employer, its clients, or other individuals, the employer generally may use that information in deciding whether to hire the individual.

Such disparaging remarks are likely not protected speech in this instance and, indeed, may be an indicator of the individual's ability to be successful at the particular place of employment. Further, the comments may be an indicator that the candidate is not the right fit for the position, much the same way as comments made in an interview may show that the candidate is not the right fit for the position.

An interesting conundrum may arise in other situations, such as where an employer learns of information about an applicant that suggests a negative tendency, yet the employer still hires the person. For example, if a private school discovers that a teacher applicant was bragging online about partying with his students, and the school still hired the applicant, the school may expose itself to a possible negligent hiring claim down the road if the individual engages in misconduct with his students.

The moral of the story is that there is no single bright line rule for using information from social media sites to make hiring decisions about prospective employees. The answer largely depends on such factors as the type of employer involved and the type of information at issue. To facilitate proper use of such information, an employer should have a social media policy in place and should train its managers on the policy.

Do you have a question about social media in your workplace? We would love to hear it and address it in one of our upcoming columns.
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Troy Rackham holds the highest rating awarded by Martindale-Hubbell® Law Directory as an AV® PreeminentTM Lawyer. Selected as a "Rising Star" by Colorado Super Lawyers in 2009, 2010 and 2011. His practice includes employment and civil rights law, legal and medical malpractice and other forms of complex litigation. Reach Mr. Rackham at trackham@fclaw.com .

John Balitis practices in the labor and employment area with Fennemore Craig representing employers in arbitration, litigation and administrative proceedings.  He can be reached at jbalitis@fclaw.com mail to: jbalitis@fclaw.com .

Carrie Pixler-Ryerson practices in the area of appeals as well as in labor and employment at Fennemore Craig.  She can be reached at cryerson@fclaw.com  mail to: cryerson@fclaw.com.

 

 

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