Attorneys: Be wary of using social media as part of the hiring process

On Board Online • January 12, 2015

By Jeffrey D. Honeywell and Ryan P. Mullahy

Although social media has been enmeshing itself into our lives for more than a decade, many employers - including school districts - struggle with what role, if any, this technology should play during the employee hiring process. For legal reasons, many employers avoid doing social media checks or even Google searches during the hiring process.

Reviewing an applicant's online presence may result in learning more about an applicant than any employer wants to know. For instance, suppose that the employer learns from an applicant's Facebook page that she has a previously undisclosed disability and that she has religious beliefs that make her a member of a protected class under federal and/or state law. Suppose that the employer also finds that she said in a recent post that she doesn't like kids and that teaching is her "fallback" career. While no one wants to hire an unhappy, child-loathing applicant, the fact that this person is a member of one or more protected classes and this is known to the district can complicate the hiring decision.

If denied the job, the applicant could claim that the district discriminated against her because of her disability, her religion or both. This risk is higher in New York State, where the anti-discrimination laws that give protected status to various classes of people are much broader than their federal counterparts. If the applicant can point to multiple instances in which she posted that she adores children and teaching, that might undermine the district's stated explanation for its hiring decision. In any event, dealing with a discrimination claim is expensive and time-consuming regardless of the merits.

Employers that choose to conduct research on employment applicants using the Internet or social media can minimize legal exposure by dividing the research and interview/hiring functions among different school district staff. For example, a school district might designate its human resources director as the sole employee responsible for reviewing an applicant's social media postings, with the understanding that the HR director would not be on the hiring committee and would report to the hiring committee only that information that relates directly to an applicant's qualifications for a given position and is not protected under the law. There should also be a clear directive to the members of the hiring committee that they not undertake any independent investigation into the applicants' Internet or social media presence. Such an approach should be part of a written plan that is consistently followed.

Consult your school attorney, who may favor a different approach - or to play it safe by staying away from social media checks altogether.

Jeffrey D. Honeywell and Ryan P. Mullahy are attorneys with the Albany law firm of Girvin & Ferlazzo, P.C.