Employers mining Internet for details

By Sylvia Hsieh

Dolan Media Newswires

BOSTON, MA--With little guidance from courts, many companies are mining social media sites for information about job applicants that can't be found on a resume - and risking lawsuits in the process.

"There's been a huge increase in questions about best practices in social media screening and its potential pitfalls," said Pamela Quigley Devata, a partner at Seyfarth Shaw in Chicago who advises employers.

Employment lawyers warn that while this has become a common practice to get useful information, Internet searches turn up a lot of other information normally off-limits to employers in making hiring decisions.

"If you start looking at Facebook and Twitter, you're going to find out a person's age, ethnicity and if they belong to a gay rights organization," said D. Jill Pugh, an employment lawyer who represents plaintiffs and small employers in Seattle.

Some employment lawyers say it's only a matter of time before they start seeing failure-to-hire claims based on information found on social media sites.

In one recent case, a professor of astronomy sued the University of Kentucky when he was denied a job after the hiring committee found articles he wrote suggesting he might believe in creationism. That suit settled earlier this year for $125,000.

Margaret M. DiBianca, an associate at Young Conaway Stargatt & Taylor in Wilmington, Del., also expects to see an uptick in the use of social media activity to support employees' allegations of discrimination and retaliation.

In one recent case, DiBianca's firm represented a company sued for retaliation by an employee who used the fact that her human resources manager unfriended her on Facebook as evidence that she was being snubbed by her employer.

"That's the kind of area where social media evidence will be exploding," DiBianca said.

Lawyers recommend that employers tell job applicants they will be Googled and give them a list of things they will be looking for, such as threats or violence, illegal drug use, racist or sexist language, or disclosure of a previous employer's trade secrets.

Attorneys advise employers to appoint a human resources manager to perform Internet searches.

"People in human resources have a greater understanding oftentimes of specific laws and what they can and can't take into consideration," said Devata.

This also prevents a decision maker from seeing prohibited information.

"It creates a little bit of a wall. If you have somebody responsible doing the searching, they only pass on legally relevant information to the people making the [hiring] decisions," said Jennifer G. Redmond, a partner at Sheppard Mullin Richter & Hampton in San Francisco.

If an employer decides not to hire based on what it found on the Internet or a social media site, lawyers recommend giving the applicant a chance to explain or dispute the information.

"Show the applicant, 'Here's a screen shot of the racist language that appears to be posted,' and give them a meaningful opportunity to respond," said DiBianca.

"They may say, 'What are you talking about? That's not even me,'" said Devata.

Entire contents copyrighted © 2011 by Dolan Media Company.

Published: Thu, Dec 15, 2011

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