Ask Annie

Checking out job applicants on Facebook? Better ask a lawyer

March 2, 2011: 12:56 PM ET

Social media sites are handy for learning more about applicants than their resumes reveal, but beware the legal pitfalls.

By Anne Fisher, contributor

Dear Annie: I read your recent post on using social media sites to find a job, and I wonder if you can answer a question from the hiring side. I'm staffing up a new brand-management team at my company. The HR department is doing most of the initial screening, but I've also been Googling candidates and looking them up on Facebook, Twitter and LinkedIn just to get a clearer sense of what they're like before they come in for interviews.

My boss saw me doing this and suggested I speak with someone in our legal department about it. He didn't say why, and I didn't ask, but now I'm curious. Do I really have to get legal involved? As a rule I'd rather not, but what will I be missing if I don't? —Wondering in Washington, D.C.

Dear Wondering: Your boss has a point. Although 77% of hiring managers now use social media sites to check out job candidates, according to a recent poll by executive career site ExecuNet, the practice comes with a few legal risks that you'd be smart to keep in mind.

One pitfall has to do with the concept of "disparate impact." To avoid the appearance of racial discrimination, the pool of candidates who can apply for a job should be made up of a mix of ethnic groups that roughly reflects the workforce as a whole. Relying too heavily on social media sites makes this difficult.

Consider: The U.S. population is roughly 13% African-American and 15% Hispanic, but media analytics firm Quantcast reports that both groups are underrepresented on LinkedIn. Quantcast's latest figures show that Latinos account for just 4% of LinkedIn users; only 5% are African-American."

"It's easy to argue that sourcing via LinkedIn will have a 'disparate impact' on those groups of potential candidates, and a similar case can be made for all the social networks," says Todd Owens, general manager of TalentWise, which helps companies screen job applicants.

The issue of disparate impact is particularly sensitive for defense contractors and other employers whose main customer is Uncle Sam, since the Office of Federal Contract Compliance Programs requires contractors to be transparently non-discriminatory in hiring or lose its business.

The solution, Owens says, is to "advertise job openings through multiple channels, and get candidates from a variety of different sources, including employee referral programs. Social media sites are tremendously useful, but they should be only one part of your information-gathering process."

Another legal risk you take when you check someone out online: You may discover information that you wouldn't be allowed to ask about in a job interview.

"For instance, what if you look up an applicant on Facebook and find out that she belongs to half a dozen groups for expectant mothers? Not all the personal information available on social media sites is relevant to job performance, or is within the bounds of what employers can legally use as a basis for hiring decisions."

It's also a big reason why some companies bring in a third party to screen candidates online.

"We pass along only verifiable, job-relevant information," says Owens. "At the very least, you should have someone in your company other than the hiring manager do these online searches, and give the hiring manager only information that is relevant to the job."

When you speak with your legal department, they'll probably suggest that you keep detailed records of why you did or didn't hire everyone you considered, so a complete and transparent paper trail will be on hand if OFCCP auditors come calling or a plaintiff's lawyer formally requests documents.

"A judge or jury infers that, if you didn't maintain records, the process must have been prejudicial," says Paul Mollica, a partner at Meites, Mulder, Mollica & Glink in Chicago

Your lawyers may also recommend that, as Todd Owens puts it, you "go the extra mile. Just as the Fair Credit Reporting Act requires you to notify someone up front if you're going to delve into their credit history, think about informing job candidates ahead of time that you're going to look them up on Facebook and LinkedIn," he says.

"Then, if negative information does surface, give the person a chance to explain it. There's nothing wrong with checking people out online, but if you don't keep the process transparent and job-relevant at each step of the way, you could be asking for trouble."

Are you sorry you asked?

Talkback: If you're a hiring manager, have you ever hired, or not hired, someone because of information you found on a social media site? Leave a comment below.

Editor's Note: An earlier version of this story did not attribute LinkedIn demographic data that we collected from Quantcast. We have adjusted this paragraph to include the attribution and have inserted more recent demographic data.

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About This Author
Anne Fisher
Anne Fisher
Contributor, Fortune

Anne Fisher has been writing "Ask Annie," a column on careers, for Fortune since 1996, helping readers navigate booms, recessions, changing industries, and changing ideas about what's appropriate in the workplace (and beyond). Anne is the author of two books, Wall Street Women (Knopf, 1990) and If My Career's on the Fast Track, Where Do I Get a Road Map? (William Morrow, 2001).

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