Hiring in the Age of Social Media

Legal Brief

THE TEMPTATION TO CONDUCT online searches about job applicants is nearly irresistible. Most prospective employees participate in professional or social networking through common social media applications.

Before you type your candidate’s name into a search engine, consider these do’s and don’ts.

Do restrict your search to the public domain.
Applicants have a constitutional right to be free from unreasonable searches when they have a reasonable expectation of privacy. To the extent online information is publicly available, an applicant does not have a reasonable expectation of privacy. Password-protected information is intended to be private, however. School officials should not ask applicants to provide user names and passwords to access private sites.

Do not have final decision makers conduct searches.
The employee who will be making the final hiring decision should not conduct the online search. An online search may reveal information — such as race, religious beliefs or disabilities — that should not influence employment decisions.

Ideally, another individual with human resources training would conduct the search and share only reliable and relevant information with the decision maker. If a principal is interviewing teachers, the principal could ask the district’s HR department to conduct online searches on the top candidates.

Do verify the reliability of online information.
What information should HR share with the principal? First, HR should attempt to verify that search results pertain to the applicant and not another person with a similar name. HR can tailor searches based on the applicant’s resume, including the applicant’s location or current employer.

If information cannot be verified by HR, then the information should be ignored or verified by asking the applicant directly.

Do limit screening to relevant, nondiscriminatory information.
HR should weed out information that may lead to discrimination under Title VII and your state human rights agency’s regulations, the Americans with Disabilities Act, the Age Discrimination in Employment Act and other federal and state laws.

Do not consider applicants’ free speech on matters of public concern.
HR also should exclude information protected by the First Amendment. Protected speech includes private speech on matters of public concern, such as online comments about a political campaign. If, however, the applicant has online posts complaining about his past employer, that speech is generally not considered a matter of public concern, even if the information is posted publicly.

Other information generally not protected by the First Amendment includes information that contradicts the applicant’s resume or indicates the employee was insubordinate or did not follow directives at a prior job. Moreover, posts or photos showing the applicant engaged in illegal or immoral conduct may be considered if the conduct would negatively affect the applicant’s effectiveness in the job.

Search Procedures

A school district that plans to use online searches in hiring should establish procedures that begin by having the human resources director conduct the searches. The procedures may require that searches be conducted for all or specified positions. Searches should be conducted consistently within specified categories.

The procedures may address other matters, such as what search engines to use and how information will be reported to and used by the hiring manager. The school district should notify candidates that it will search for relevant information online. The employees should be required to maintain the confidentiality of any information gathered online so the applicant has no basis to claim defamation by an employee who shares detrimental information with a third party.

Some districts may decide to prohibit online searches. Remember, though, that the temptation to search will be great. The district may be better off setting guidelines for hiring officials rather than a strict prohibition.
 
JOY BASKIN is director of legal services with the Texas Association of School Boards in Austin, Texas.