The NLRB and the EEOC are primed to sue you for using social media in the hiring process

by Michael Haberman on November 19, 2014 · 0 comments


The NLRB doesn't like employers using social media in the hiring process.

The NLRB doesn’t like employers using social media in the hiring process.

The use of social media has been used for finding candidates for several years. It is an excellent tool for finding both active and passive candidates. But its use comes with some potential downsides because the government doesn’t like you using it.

Exposed to more than a résumé

Apparently the government’s dislike of the use of social media in hiring stems from the fact that you might see some membership or some opinion that could be considered to be protected. Ashley K. Laken, an attorney with Seyfarth Shaw, reports on a panel discussion that NLRB General Counsel Richard Griffin, NLRB Board Member Harry Johnson, and EEOC Commissioner Chai Feldblum participated in. According to Attorney Laken the panel said “that while hiring managers can look at applicants’ personal details or opinions that are posted online, they cannot use those details or opinions when making hiring decisions.” My friend Eric B. Meyer also participated in the panel.

Laken gives an example of a manager reviewing an applicant’s Facebook page and seeing that she is both an avid bird watcher and a dedicated union member. The manager mentions the bird watching in the interview because he is also a bird watcher. After the interview he decides the candidate doesn’t have the background and rejects her. She knows that he saw that she was a union supporter and attributes her rejection to her union affiliation and files a complaint as a violation of the National Labor Relations Act, which indeed it is.

Some of you may be thinking that the way around this is to have HR be the one that views the information and “sanitizes” it for the hiring manager. Well the NLRB doesn’t like that either. Laken reports that Board member Harry Johnson said “the standard for allowing knowledge to be imputed among different supervisors is very liberal under current interpretations of the National Labor Relations Act, meaning that if management were to do that, it would have to make sure that the process is ‘very hermetically sealed.’”  Meyer added from the employer’s standpoint “.. some best practices that employers could adopt to help alleviate the risk. ‘One way is to have the hiring decision-maker not do the trolling, and have the other person sanitize the information [obtained through social media] and hand the decision-maker a clean sheet to ensure that the hiring decision is made on legitimate business reasons.’ Still, the approach is hardly fail-safe, he warned.”

“Chilling effect”

The biggest objection to the use of social media in hiring seems to come from the NLRB. They have been the most active in trying to clamp down on social media use, especially that of current employees as opposed to applicants. There is language they use when ruling on employer activity in union campaigns. They say that if the employer did something that had a “chilling effect” on how employees voted in a union vote they could set aside the results of the election. In this particular case their language about the use of social media may have a chilling effect on employer using social media.

Most of their activity, however, seems to be focused on the use of Facebook as a source of information. To be honest I have not been a big fan of using Facebook as a screening tool for the very reason that some people spill the details of their personal lives out for everyone to see. That much personal information can be problematic for them and can certainly be problematic for employers exposed to that information. For hiring purposes I am much more of a fan of Linked In.

Attorney Laken offers this advice “employers should tread lightly when considering whether to take a look at applicants’ or employees’ social media activity, and even more lightly when considering whether to act on it.”

 


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