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December 8, 2014

NLRB, EEOC Warn Employers Of “Legal Landmines” Involved In Using Social Media In Hiring

Last week the law firm Kelley, Drye and Warren reported members of the National Labor Relations Board (NLRB) and the U.S. Equal Employment Opportunity Commission (EEOC) discussed the use of social media in hiring at a forum in Philadelphia. The discussion is an important reminder for employers to be very cautious in their use of social media to make personnel decisions. Indeed, both the NLRB and the EEOC warned “laws barring the improper use of information still apply, even when individuals post personal details online.” The law firm explains (emphasis added):

“Often, employers use social media in two ways when hiring: to recruit candidates by publicizing job openings and to conduct background checks to confirm a candidate’s qualifications for a position. Using social media to confirm an applicant’s background and qualifications can be a legal landmine. Hiring managers can look at applicants’ personal details or opinions that are posted online, but they cannot use those details or opinions when making hiring decisions. For instance, if a hiring manager looks at a candidate’s social media profile, they should not make comments on an aspect of it during the interview. If the candidate isn’t hired, he or she can then use anything that was on the profile—even if not discussed in the interview—as grounds for action against the would-be employer. Thus, social media provides a good opportunity for HR and employment lawyers to retrain hiring managers on what they can legally consider when making a hiring decision. If you take one thing away from this short warning, remember: it is illegal for an employer to base hiring decisions on stereotypes and assumptions about a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information, even if the employer learns about these characteristics on social media.”