Employment law knowledge

[sadmin]

Does anyone here have any knowledge about possible legal pitfalls when making hiring decisions based upon the eeoc guidelines? More specifically, those that hire, do you use social networking sites to screen possible applicants despite the legality issues? Im in need of some info. or open discussion.
thanks

[ToddG]

Nothing in this post should be considered legal advice. For proper legal advice, consult with a licensed attorney in your jurisdiction who is especially qualified to deal with issues of this particular nature.

Most smart employers nowadays do check MySpace, FaceBook, Twitter, LinkedIn, and other social networking sites for prospective candidates who have reached a point of likely employment. It is also increasingly common to see background checks or at least credit checks.

To the best of my knowledge, there is no liability exposure for locating and examining information about an applicant that said applicant himself published online for all to see.

The only "pitfall" would be if you used something you learned (religion, national origin, etc.) in an illegal way when making hiring decisions.

If someone's Facebook page identifies him as, say, Muslim and your articulated reason for turning him down for a job is that he's Muslim, you've obviously violated EEO.

If someone's Twitter account details his last three jobs, all of which he quit because he doesn't actually like to work or because he kept punching his boss in the head, it's completely legitimate for you to use that as a reason to discontinue his application.

[John_Wayne777]

There's nothing wrong with using networking sites to screen applicants. What you cannot do is use race, religion, national origin, sex or age (if they are over 45) as a disqualifying factor unless you can come up with a BFOQ for the age or sex requirement.

...and good luck doing that.

There's nothing illegal about looking up an applicant's facebook/myspace/whatever page and seeing what they have posted there. If you're looking at the pages and saying to yourself "Oh...he's black. Reject pile." that would be illegal. If you look at his facebook page and say to yourself "Oh...he belongs to a rape porn enthusiast group. Reject pile." that would be perfectly legal.

[kwelz]

Don't take this as legal advice!

I used to work in staffing. All I did was hire and fire people. Before I even interviewed someone I knew every detail I could find about them from myspace, Linkedin, Facebook, etc.

All this information is public and can be used for grounds to hire or not hire someone.

[sadmin]

Thank you all. Im asking because I spoke to an attorney who said that its unethical and illegal depending on how you use the information... so heres a scenario.

John applies at Acme. Acme visits facebook upon receiving Johns resume. Acme sees that John is a muslim. Acme then puts Johns resume in the reject pile.
John contacts Acme and says, "Hey, whats the deal, I thought we were moving forward?" Acme says "Naaa we went with another candidate."

If John says why, does Acme have to tell John why? If they do, (which I dont know why they would, as they would anticipate litigious results...) can John can file a complaint?

OK, so the question im asking is, can anything happen to facebook in this scenario? Can they be held accountable for hosting the information, although its on the public domain?

[sadmin]

Don't take this as legal advice!

I used to work in staffing. All I did was hire and fire people. Before I even interviewed someone I knew every detail I could find about them from myspace, Linkedin, Facebook, etc.

All this information is public and can be used for grounds to hire or not hire someone.

What if you had already interviewed them? Then researched them...did your HR dept worry about the ramifications there?

[ST911]

There's something wrong with employers that are NOT using the web to background their applicants.

Permissibility of doing so is pretty well established. Many employers are asking for that information outright, and having applicants disclose their past and present email addresses, webpages, blogs, forum IDs, etc.

[chadbag]

What if you had already interviewed them? Then researched them...did your HR dept worry about the ramifications there?

I am not a lawyer, and I don't even pretend to play one on TV, nor did I stay at a holiday inn express last night.

Did they already make the job offer (based on the above and your previous post with John/ACME)? Just wondering, as that probably is more of a commitment than merely interviewing and saying that you would get back with them or call them back for further interviews.

If they say, no thanks, I would never say why. Just something along the lines of, "another candidate came up who fit the bill better" or something pretty generic and innocuous. If John asks why, just repeat that line or whatever other generic line you come up with.

This all is an example why, if you dabble in social media, you want to be very careful about what you say/post and what you make public.

[sadmin]

Yes, in that scenario they had already made the offer. Its a worst case scenario.
Truth be told, this revolves around a project im working on. Statics have shown that the amount of social networking profiles that are are public are dropping fast. Im looking to alleviate that, but my attorney has told me that the eeoc will shut me down as soon as a complaint is filed. Im no attorney, and understand you fellas arent either, but I have to disagree with her.
If there is separate entity, that hosts public information, why would itself be under scrutiny if some schmuck HR rep admitted to using the entity to screen a candidate either before or after an interview?

Thanks for the information, im reading articles out the wahzoo, but wanted some discussion from those that are business owners or just have insight.

[Outlander Systems]

OK, so the question im asking is, can anything happen to facebook in this scenario? Can they be held accountable for hosting the information, although its on the public domain?

Negative. By agreeing to their terms of service, you're essentially waiving your rights to complain. You're, in essence, handing over your information to them, to use at their discretion. It's physically stored in their servers, not yours, so...

[Heavy Metal]

I do not use my real identity on facebook anymore than I use it here.

[Hat Creek]

Have you ever transmitted an electronic image of yourself via the internet?

What sort of image and who did you send it to?

Have you ever posted an electronic image of yourself on an internet site?

Have you used an alias to transmit electronic images over the internet?

What type of images? How often?

What alias names have you used in conjunction with the internet?

_______________________________

From a form completed prior to a polygraph test.

[Left Sig]

Are you hosting a website that publishes personal information about people with their consent? Or are you using such websites to screen candidates for a different business?

When you say "shut me down", do you mean your website, or your business?

If you have a website, the most important thing is that the people have consented to their information being publicly posted. If so you should be OK. If you are posting info without permission, then that's a different story.

In my experience, some attorneys I've dealt with have been very conservative in their advice, trying to stay far away from anything that might draw a legal challenge. Avoiding even the possibility of a claim, rather than providing advice on how far you can legally go and still have a viable defense against a claim. Sounds like your attorney is taking this approach.

[sadmin]

Are you hosting a website that publishes personal information about people with their consent? Or are you using such websites to screen candidates for a different business?

When you say "shut me down", do you mean your website, or your business?

If you have a website, the most important thing is that the people have consented to their information being publicly posted. If so you should be OK. If you are posting info without permission, then that's a different story.

In my experience, some attorneys I've dealt with have been very conservative in their advice, trying to stay far away from anything that might draw a legal challenge. Avoiding even the possibility of a claim, rather than providing advice on how far you can legally go and still have a viable defense against a claim. Sounds like your attorney is taking this approach.

I appreciate that advice. Thats what I was thinking, she completely avoided any idea of me circumventing the law. I do not have anything setup at this time. It would be totally consensual and optional.

[Alpha Sierra]

I have a Linkedin profile/account for professional/career purposes.

I have no facebook/twitter/myspace/google/anything account or pages or profiles.

I routinely google/search engine my name and happily find little to nothing about me. I do find a lot of things about artists who share my name but are not me.

I like my anonymity.

And yes, I am sure people get denied jobs for all kinds of EEOC-violating reasons and no one can prove it. It's just the way it is.

[Alpha Sierra]

Have you ever transmitted an electronic image of yourself via the internet?

What sort of image and who did you send it to?

Have you ever posted an electronic image of yourself on an internet site?

Have you used an alias to transmit electronic images over the internet?

What type of images? How often?

What alias names have you used in conjunction with the internet?

_______________________________

From a form completed prior to a polygraph test.
I would walk away from any employment application process that asked those questions.

[Left Sig]

I appreciate that advice. Thats what I was thinking, she completely avoided any idea of me circumventing the law. I do not have anything setup at this time. It would be totally consensual and optional.

Remember, this country has an overabundance of lawyers, and half of them graduated in the bottom half of their class!

I'm not advocating that you circumvent the law. But if you ARE within the law and have a viable defense to a claim, I don't like it when lawyers try to steer you clear of anything that could be remotely used against you.

I've seen this happen. Worst example is laying off high performing employees along with poor performing employees that are part of a protected class. HR was afraid of lawsuits by the poor performing protected-class employees so they decided to lay off entire departments without regard to performance. That way they could claim it was simply a matter of where you were assigned, and nothing else.

The surviving departments were not allowed to lay off their low performers and keep the high performers from the eliminated departments. This amounts to actively screwing the business to avoid an unfounded legal claim that could easily have been defended by referencing annual performance reviews and education level differences between the good and bad employees.

[John_Wayne777]

If there is separate entity, that hosts public information, why would itself be under scrutiny if some schmuck HR rep admitted to using the entity to screen a candidate either before or after an interview?


If networking sites are off limits to employers it's going to be news to just about every HR person in the country.

The anti-discrimination laws are clear about the categories of information you can't use as a basis of discrimination...and facebook ain't one of them.

[Hat Creek]

I would walk away from any employment application process that asked those questions.

No dis-respect intended, but places that ask those questions will be best served by those that do walk away.

[ToddG]

John applies at Acme. Acme visits facebook upon receiving Johns resume. Acme sees that John is a muslim. Acme then puts Johns resume in the reject pile.

Did Acme put him in the pile because he's Muslim? If so, Acme is screwed because that's illegal. It does not matter where the information came from. EEO is about the basis upon which people are hired, fired, promoted, etc. So whether you read it on FaceSpace, heard it from a reference, or happened to see him walking out of a mosque one afternoon it's all the same.

[kwelz]

We would sometimes check after we interviewed people yes. It just depended. I tried to do it before the interview process but staffing is an interesting beast.

As for the scenario you gave us. That is both ILLEGAL and in my opinion unethical. You can not, and should not, base hiring on religion. The only entity held accountable in that situation is the company that discriminated against the person and possibly the person or persons directly involved in the hiring process.

I once interviewed a very non passable Tranny. Extremely sharp in her field. Very nice to deal with, perfect interview. But she was very hard to place for obvious reasons. One company actually flat out stated they would not hire her because of her sexual orientation. We could no longer work with them. It put us and them in possible legal trouble.



The anti-discrimination laws are clear about the categories of information you can't use as a basis of discrimination...and facebook ain't one of them.

Facebook is just the medium. It is what information you use that is important.
If you don't hire someone because they have a photo of them taking a hit of a bong (yes I have had that situation) then you are within your rights.

Don't hire them because you see them kissing another person of the same sex or walking into a Catholic church/Mosque/temple then you are boned.

[Alpha Sierra]

Don't hire them because you see them kissing another person of the same sex

Gender preference is not Federally protected and it is neither in most states.

[Alpha Sierra]

No dis-respect intended, but places that ask those questions will be best served by those that do walk away.

I simply do not accept that employers should have access to private information such as passwords, usernames, and the like.

I have nothing to hide, but I just as well will not allow a cop to rummage through my car just because he asks.

A line has to be drawn somewhere. And that is mine.

[ZDL]

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