Job Talk with Anita Clew

A reader writes….

Dear Anita,

I own a small business and am in the process of hiring a few employees.  As part of my “screening,” I have looked up candidates on Facebook.  Since I’m not “friends” with these people on the site, I am unable to access a lot of their information.  In some cases, however, their profile picture alone tells me whether or not I want to hire them. Is it considered legal or illegal to make hiring decisions based purely on photos or “Wall” posts?   

Dear “Digital Detective,”

I love your question and believe it is a subject that not only pertains to supervisors and hiring managers… but to job seekers as well.

To cut to the chase, I highly recommend you DO NOT make hiring decisions based on what you see on Facebook.  While it may be tempting, there are several factors you must consider when hiring employees.  Moreover, you may be crossing the line. Remember, discrimination in any form based on Social Media that you view (whether pictures or comments) because of race, color, religious creed, age, sex, gender, sexual orientation, national origin, ancestry, medical condition, pregnancy, childbirth, mental disability, physical disability, veteran status, marital status, registered domestic partner status, or genetic characteristic is against the law.

Despite this warning, it is interesting to note that according to a survey by Microsoft, 75% of U.S. recruiters and HR professionals report that their companies REQUIRE them to do online research about candidates.  This type of “digital detective work” (as I like to call it) includes social networking sites, blogs, online gaming sites, and more.  To top it off, 70% of U.S. recruiters report that they have rejected candidates because of information they have found online (including photos)… sound familiar?

Job seekers… listen up!  While it may be fun to post pictures from last night’s party (for the world to see), believe it when I tell you, your potential employer may be seeing it too.  Does that mean you don’t have the right to post such fun memories?  Of course not!  But be warned, anything you post online can be searched, accessed, saved, and in the case of getting hired… used against you.
Take it from Anita, think twice before you upload!

In a New York Times article posted last summer, it was noted that,  “there are more than 100 million registered Twitter users, and the Library of Congress announced that it will be acquiring — and permanently storing — the entire archive of public Twitter posts since 2006.” Hmm…  Any incriminating “tweets” out there, my friends?

So getting back to the question at hand – Is it legal or illegal to make hiring decisions based on photos, etc…

I’m not an attorney, but from what I’ve read, it looks like there are a lot of people out there that would like to see this hiring practice eliminated.   Facebook photos and updates are meant to be fun, light-hearted, and personal – without “Big Brother” watching.  Some have equated Facebook as being the new break room gossip – where the boss is not supposed to be listening in!

The New York Times article goes on to say, “A handful of states — including New York, California, Colorado and North Dakota — broadly prohibit employers from discriminating against employees for legal off-duty conduct like smoking. Paul Ohm (a law professor at the University of Colorado) suggests that these laws could be extended to prevent certain categories of employers from refusing to hire people based on Facebook pictures, status updates and other legal but embarrassing personal information. (In practice, these laws might be hard to enforce, since employers might not disclose the real reason for their hiring decisions, so employers, like credit-reporting agents, might also be required by law to disclose to job candidates the negative information in their digital files.)”

To read the complete NY Times article, visit: http://www.nytimes.com/2010/07/25/magazine/25privacy-t2.html?pagewanted=all

And if you’re interested in reading more on this subject, here are a few additional links for your convenience:

Part 1: http://www.employmentblawg.com/2006/employers-using-facebook-for-background-checking-part-i/

Part 2: http://www.employmentblawg.com/2006/more-on-using-facebook-et-al-in-recruiting-and-hiring/

Part 3: http://www.employmentblawg.com/employers-using-facebook-for-background-checking-part-iii/

http://www.cio.com/article/679830/Social_Networks_A_New_Hotbed_for_Hiring_Discrimination_Claims_

This is a heated topic folks… and now it’s YOUR turn to post your thoughts and comments.

Tell me readers, should hiring managers use Facebook as part of their decision-making process?
If you’re a manager, do you include this step? If so, what has it revealed?

Anxious to hear from you!
Anita