It’s no secret that auto dealers have frequently been forced to defend themselves against claims of discrimination by employees and agencies like the Equal Employment Opportunity Commission. As a result, many dealers have instituted comprehensive human resource programs to prevent potential problems. However, new technology brings new challenges.

As the use of social media grows, more and more dealerships are using the Internet to screen potential employees. Many hiring managers find these sites particularly helpful because they perceive this information to reflect a more accurate representation of the applicant beyond the interview. This influx of information about applicants seems to be a great way to test your ability to “fit in” with a company.

While social media can allow employers to obtain a wealth of information about job applicants, hiring managers who even casually use these tools to gather information about a prospective employee could expose the dealer to legal risk. Given the real possibility of inappropriate and illegal uses in the context of recruitment, organizations should carefully consider how, if at all, they use the sites when selecting candidates.

Discrimination Claims – When a job candidate is the subject of a social media search, there is a chance that the search will reveal information that would be off limits for an interview, such as age or marital status. Hiring managers need to be very careful about using private information that people post to make hiring decisions. An employer taking advantage of such information could pave the way for allegations of discrimination if the employee or applicant believes the employer used such information to make an adverse employment decision. It can create a risk that this protected class information is actually being considered or even if it is not, putting your organization in the position of having to defend a claim knowing that this information existed on the sites you visited. Risk factors include:

• Information about age, race, religion, gender, disability, or other protected characteristics, such as pregnancy, illness, or disability. For example, a person’s Facebook page may reveal their religion. Once an employer knows that information, the fact that the prospective employee’s religion was known to the employer can be used in an employment discrimination lawsuit.
• Check social media or the internet only on applicants of a certain race or gender.
• Search across all applicants, but use the same information differently against a particular type of applicant. For example, if all of your applicants had pictures of themselves drinking alcohol in public, but you viewed that fact more negatively against women, that could be considered discrimination.
• Reject an applicant based on conduct protected by lawful off-duty conduct laws.
• Rejecting an applicant because of their political activities may violate state constitutional law.

To avoid these legal hurdles, you may decide it’s best not to collect that information at all, so you can say you didn’t have access to it. Another procedure would be to have someone other than a hiring manager or human resources decision maker run an online background check on job applicants. The person conducting the online verification should avoid sharing with decision makers any personal information about a candidate that is not relevant to the hiring decision. This person must be properly trained to prevent improper access and discard information that cannot be legally considered in the decision-making process. Having a firewall between the hiring manager and social media information about job applicants makes it difficult for a claimant to later claim that the hiring manager discriminated against them based on a legally protected characteristic.

Invasion of privacy claims by potential employees – In general, a potential employee will have a hard time asserting this claim because they need a “reasonable expectation of privacy” and many people keep their social media profiles open to the public. However, it is clear that if the applicant is using the highest privacy settings and the employer somehow overcomes all these barriers, the claim is stronger.

One point to consider is how the hiring manager will gain access to the candidate’s page. Many social media users have some degree of privacy set in their settings. As a result, access to the applicant page may require “befriending” the applicant and the applicant accepting the application. It is not a good idea.

Use an outside agency to screen applicants – If an employer uses a third party to conduct job candidate searches, the federal Fair Credit Reporting Act and applicable state background check law may apply. The Fair Credit Reporting Act governs “employment background checks for hiring purposes” and applies if “an employer uses a third-party screening company to prepare the check.” Therefore, if an employer is using an outside resource to view social media sites and provide information, the applicant must be informed of the investigation, given an opportunity to consent, and notified if the report is used to make an adverse decision. . It’s important to make sure that any company you use to conduct background checks follows the correct procedures and that your job applications contain the proper notices.

Best Practices for Using Social Media in Hiring Decisions:

1. Develop a policy on whether or not the hiring manager will search the internet or social networking sites when hiring.
2. If you decide to use social media in hiring, conduct your searches for applicants in a consistent and uniform manner.
3. Make sure candidates are notified, in writing, about employers’ use of social media to collect information, for example, on job applications.
4. Make sure employment decisions are made based on legal and verified information. Do not allow factors that have no relevance to job performance, such as race, age, or sexual orientation, to be considered. They are all protected statuses by law and using them as hiring criteria is discriminatory.
5. Follow best practices to identify a legitimate, non-discriminatory reason for the hiring decision with documentation supporting the decision.
6. Prohibit “befriending” a potential employee to learn things about them that the general public doesn’t have access to.
7. Discourage supervisors from being social media friends with their direct reports.